Kyger v. Depue , 6 W. Va. 288 ( 1873 )

Hayhond President. .

I have examined the record in this case, and the authorities cited by the counsel for Plaintiff and Defendants with great care, and have found much difficulty in arriving at a satisfactory conclusion. From the bills, answers, exhibits and depositions, I am satisfied that the deed from Plaintiff to defendant Neal, dated the 22nd day of June, 1865, mentioned in the original bill as exhibit No. 1, was not intended by the parties thereto, at the time of its execution and delivery, to be, and to operate as an absolute sale and conveyance of the 1,500 acres of land therein mentioned. But that the deed was executed and delivered to Neal by Plaintiff, in trust and confidence that Neal would reconvey the land to Plaintiff at a future period, according to the understanding, contract and agreement, oral and written, then made between them, and that Neal after the execution of the deed by his letters Avritten to Plaintiff and filed as exhibits Avith the amended bill, recognized an equitable right existing in the Plaintiff in the land, especially so, in his letter dated October 29th, 186V, and in his ansAver to the amended bill and otherwise. It is true, that Neal in his ansAver first 'filed, Avhich is made upon oath, denies that the conveyance Avas made for the purpose alledged in the bill; but he avers that it was a bona fide conveyance of the land to him. He also admits that he executed a Avriting to Plaintiff in relation to the conveyance Avhich Avas afterwards cancelled by the consent of Plaintiff, and a neAV arrangement made. A bona fide purchaser is one Avho actually purchases in good faitb. Bouvier’s Law Dictionary, 211, 2nd Kent’s Comm., 512. In bis answer to Plaintiff’s amended bill, Neal admits that when he first bought the 1,500 acres, he agreed to reconvey the same to Plaintiff, when he (Plaintiff) had paid to him all the liabilities he had assumed for him (Plaintiff.) It seems to be admitted that the action brought by Roberts grew out of the late war, and Neal, in the concluding clause of his answer to the amended bill, says that he and Plaintiff both felt and knew’ it to be an unjust demand. Kannard and Neal (who were responsible men) signed the “supersedeas bond” in the appeal taken by Plaintiff from the judgment of the Circuit Court in favor of Roberts, against Plaintiff, to the Supreme Court of Appeals, which made the Roberts judgment, if correct and lawful, secure and safe. Neal now seems to claim the whole of the lands conveyed to him at the date of both deeds, notwithstanding they greatly exceed in value the money paid or liabilities incirrred. And it is now for the Court to arrive at the -justice of the case in accordance with the rules of equity and good conscience governing courts of equity, as nearly as may be.

With Plaintiff’s amended bill there is' filed, as exhibit No. 3, a deed from Al L. Kannard and wife and Plaintiff to Neal, dated the 4th day of December, 1867, conveying to Neal certain lands which had been previously conveyed by Plaintiff to Kannard, to indemnify Kan-nard against liabilities for Plaintiff as alledged in the bill, and not denied in the answers. This deed toward the conclusion thereof, and after conveying other lands, which are described, contains this clause, to-wit: “And the said Hugh Kyger doth hereby grant unto the said Neal, in addition to the lands partly described in the foregoing conveyance, all the lands held or owned by said Kyger in the counties of Roane, Jackson and Wirt, in partnership with others or in his own right, and not expressly set forth ' in this deed, except the 1,000 acres sold to C. C. Smith. As to Kannard the deed is one of special warranty, but as to Plaintiff it is a deed of general warranty. This deed was made after the Roberts judgment, (from which an appeal and supersedeas was taken to the Supreme Court of Appeals) was confirmed, and it passed and vested in Neal all interest, right or title, legal or equitable, which Plaintiff had to the 1,500 acres of land at the time of its delivery, except so far as it may have been qualified by another and new contract made between Plaintiff and Neal. The deed from Plaintiff to Kannard is not.filed, but the object and purport of it is alledged in the bill, and aie not denied in the answers. ' Neal filed with his answer to the original bill, as exhibit A, a written contract signed and sealed by Plaintiff and Neal. The contract is not dated, but it refers to the deed from Kannard and Kyger to Néal, ofthe 4th of December, 1867, for the lands in Roane, Jackson and Wirt counties, and it commences thus : “Hugh Kyger did on the 23rd June, 1865, and A. L. Kannard and said Kyger did on the 4th day of December, 1867, convey to D. R. Neal certain lands in the counties of Roane, Jackson and Wirt, West Virginia.” Neal says and admits that the date 23rd is a mistake; that it was intended to be thé 22nd, and referred to the deed for the 1,500 acres of land, which is manifestly true. Plaintiff, in his amended bill, alleges that this contract which he files as exhibit No. 4, was made on the day the deed was made by him and Kannard to Neal, and that it contains the contract which was the consideration for which the deed was made; and this allegation is not denied by defendants Neal or Depue, and it is substantially admitted by Neal in his answers. The 1,500 acres of land • conveyed by Plaintiff to Neal on the 22nd day of June, 1865, is cl'early embraced in this contract. It is not claimed or pretended by any of the parties to this suit, that Plaintiff made more than one deed to Neal for land in June, 1865, and that one is dated and was made- on the 22nd day of June. The contract under consideration, which I will hereafter designate as exhibit A, I think is binding on Plaintiff and Neal. Neal admits it is valid and binding on him, and Plaintiff admits it. He sets it up in his amended bill, but misconstrues it as to its legal effect. It is not claimed or even insinuated by any of the parties to this case, in their pleadings, that the deed of the 4th ot December, 1867, by Kannard and wife and Plaintiff to Neal, and exhibit A were made to defraud itoberts or any other person. Exhibit A shows that the deed of the 4th of December was made to Neal to indemnify and secure him in certain debts and liabilities of Plaintiff, assumed by Neal, amounting to some five or six thousand dollars, among which is a large part of the Huberts debt. Exhibit A concludes thus: “Now, if the said Kyger shall well and truly pay off and discharge said debts, or any other liabilities of said Neal for him, as well as the notes of said Kyger to said Neal, as they become due and payable, so that the said Neal shall not be compelled to pay any part thereof from his private means, then the said Neal hereby agrees to reconvey to said Kyger any of the lands conveyed by said Kyger and A. L. Kannard, the said Neal claiming and retaining the right to sell at his pleasure any or all of the said lands; and in the event of failure on the part of said Kyger to do and perform the undertaking aforesaid, it is left entirely to the option of the said Neal to do as he may elect in the premises. Witness the following signatures and seals.” It appears that afterwards, and prior to April 1869, Plaintiff sold to defendant Depue 698 acres of the 1,500 acre tract, and Neal received most or all the purchase money and, with the consent and knowledge of Plaintiff, made to Depue a deed for the same. I think this sale is good and ought not to be disturbed. Plaintiff, after the 4th of December, 1867, paid a large sum on debts named in exhibit A, and also paid Neal several hundred dollars. On the 3rd day of January, 1870, Neal, without the knowledge of Plaintiff, sold to Depue a boundary of the 1,500 acre tract, adjoining the 698 acres previously sold, at $15.00 per acre, supposed to contain 100 acres, but if the land should exceed or fall short of 100 acres, the excess or deficiency should be ac-counledfor at the rate of $2.50 per acre. Very soon after this sale was made Depue informed Plaintiff of the fact, and the evidence clearly shows that Plaintiff then notified Depue that he had a claim upon the land, and its character, and in fact the whole of the 1,500 acre tract, except the 698 acres previously sold, and remonstrated with Depue for having purchased the 100 acres, and begged him to allow him a chance to redeem the land; but Depue evidently thinking he had made a profitible and sharp purchase declined Plaintiffs offer. Plaintiff notified Depue not to purchase any more of the land, and I think the evidence proves that in the conversation with Plaintiff, Depue admitted that before he made the purchase he had notice of Plaintiffs claim to the land. After this sale by Neal to Depue, and on the 27th day of January, 1870, Neal wrote a letter to Plaintiff, which is filed with Plaintiff’s amended bill as Letter No. 3, from which it appears that Neal had about’ that date received a letter from Plaintiff. The contents of Plaintiff’s letter to Neal does not appear, but I infer, from the tenor of Neal’s letter, that Plaintiff’s letter was a complaint by Plaintiff on account of the sale lately before made by Neal to Depue. In the letter of Neal to Plaintiff this language is found, to-wit: “In order that you may provide against further sales to Depue (for he wants $2,500 worth more) I will say that I will defer a sale until the first of May, at which time I shall need every dollar I can command, and if you do not, by that time or before, make a sale, I shall be compelled to sell at any price I am offered. Crediting the $1,500 Depue sale, reduced to cash, leaves you still indebted to me $1,800. Albert Stringer paid me $100 for you.”

In a memorandum at the close of the letter Neal uses this language, to-wit: “My advice is, that you sell, not waiting for 1st May, as I shall make a bargain with De-pue or any other person wanting land, to be closed at that time provided you are unable to make sale. I asked Dcpue to see you about the land he still wanted and, if possible, to agree with you as to quantity and price.” Neal in this letter recognizes some right or interest of Plaintiff in the residue of the land, and he expressly extends the time for Plaintiff to make sale of land and pay the debts until the first of May thereafter. But notwithstanding this positive, unequivocal extension of time to Plaintiff until the 1st of May, Neal af-terwards on the 28th day of February 1870, about one month after the extension was given, without the knowledge or consent of Plaintiff, made an absolute sale by title bond, &c., of another boundary supposed to contain 100. acres to Dcpue, at the price of $15 per acre, adjoining the other 100 acres. This was bad faith in both Neal and Depue towards Plaintiff. It was in fact an actual fraud upon Plaintiff, and is contrary to equity and good conscience. The sale of the first 100 acres which was made on the 3d of January 1870,1 think under the circumstances ought not to be interfered with, although I have had some difficulty in arriving at that conclusion. The sale by Neal of the 28th day of February 1870 to Depue ought to, and must be set aside. It appears from the. evidence that the two last purchases of Depue from Neal embrace nearly the whole of the cleared land upon Plaintiff’s home farm, as well as the most valuable part of it, and I am satisfied that $15 per acre is far below its value. Considering the whole case, and all the circumstances connected with it, I think it should be held and declared that notwithstanding the deeds of 22d of June 1865, and the 4th day of December 1867, the Plaintiff, by and under the express terms of exhibit A., had and was possessed of the right in equity, to redeem said 1500 acres of land, as well as all tbe other lands conveyed by tbe deed of tbe 4th of December 1867 from the said Neal, except tbe 698 acres before named, and tbe 100 acres first sold by Neal to De-pue, and that said equity of redemption still exists. In so declaring I do not wish to be understood as departing from tbe principles decided in the cases of Starke’s ex’rs vs. Littlepage, 4 Rand., 368; James vs. Bird’s adm’r, 8 Leigh, 510; Terrell vs. Imboden, et al., 10 Leigh, 321; Owen vs. Sharp and wife, et al., 12 Leigh, 427, for I approve the principles adjudicated in these cases. I do not think this case, under the view I have presented, comes within the principles determined in these cases. The Court cannot avoid taking notice of and considering the fact, that peace was not officially declared until sometime after June 1865, and that during the war, and for sometime after, great excitement, passion and feelings of enmity existed among the people, as well as peril to life and property. Under such circumstances and influences many good and honest men made singular voluntary dispositions of their property, as measures of safety and protection simply, without intending to injure or defraud creditors or others; and such dispositions of property, considering the times and circumstances under which they were made, should be regarded with more liberality, when we are looking after fraud and fraudulent intent, than if made in time o profound peace.

The balance due upon the debts named in exhibit A, or the balance due Neal upon payments he may have made thereon, or because of the existence of any debt from Plaintiff to him on the 4th of December 1867, should be ascertained, after charging Neal with the amount of purchase money received on the sale of the 698 acres of land, and also charging him with the price of the first 100 acres sold Depue, and all other moneys paid to or received by him on -his debt or claim, and the liabilities against Plaintiff or Neal growing out of exhibit A. The valid and now unsettled judgment liens, if any, existing against said 1500 acres of land, prior to the 22d of June 1865, and against the other lands prior to the 23d day of June 1865, and the unsettled valid judgment liens against Plaintiffs interest in said lands should be ascertained, estimating the Roberts judgment at $3,000 in the hands of Neal, with proper interest, crediting such part as was paid by Plaintiff. After payment of the balance ■due on the debts, claims and liabilities, arising or growing out of exhibit A, and the balance due on the unsettled judgment liens, the legal title to- all the lands except the 698 acres, and the 100 acres first sold by Neal to Depue, should be vested in and passed to Plaintiff, and if they are not paid then, so much of the land, as may be necessary for the purpose should be decreed to be sold.

It is also material to a final and proper decision of this cause that A. L. Kannard and the other persons named in exhibit A, should be made parties defendant in the cause.

For these reasons the decree of the Circuit Court of the county of Roane, rendered in this cause on the 10th day of November 1871, must be reversed, and the cause remanded to said Circuit Court for further proceedings therein to be had, with leave to the Plaintiff to file an amended bill, making new and additioual parties. And the defendant Neal must recover against Plaintiff his costs in thisjCourt expended.

Paull, Moore and HoefmaN, Judges, concur in the foregoing opinion.