Vickers v. Sisson's Admr. , 10 W. Va. 12 ( 1877 )

Moore, Judge,

delivered the opinion of the Court:

Thomas A Vickers, at rules in the clerk’s office of the circuit court of Kanawha county, August 18^1, filed his bill in chancery against the administrator, administratrix, widow and heirs of Henry C. Sisson, deceased, alleging “that in the year 1856, he purchased of Henry C. Sis-son, since deceased, atThejwice of $200, a lot or parcel of land, with a house t-hereon, situate in Kanawha coun<:y> near Sissonville, containing about four acres. The contract was a verbal one, and included as appurte-to said land the use of wood and timber necessary therefor from the adjoining lands of said Sisson. Complainant was living on the place under a year’s lease at the time of the purchase, and continued in possession under this purchase until the beginning of the late war, when he was compelled to abandon the county on account of his political opinions. His wife continued in possession until September, 1861, when she left the place for another owned by plaintiff in Putnam county. When she left she put a tenant, one - Bostwick, in the house, Complainant paid the full amount of the purchase money to said Henry C. Sisson in his lifetime, and said Sisson then offered to make him a deed for the said property, but on account of the trouble that came on, it was not done. He died in the year 1865, without making a deed. The land was surveyed, and a map thereof made by A. P. Sinnett, a surveyor, at the instance of said Sisson, &c. * * * * Besides paying in full for said property as aforesaid, complainant has made permanent and valuable improvements thereon.” Complainant prays that a deed shall be made him for the property, and such relief as the circumstances of his case may require. The adult defendants filed their joint answer, by which they do not deny the parole contract, but admit that of their own knowledge they know but little of the transactions between plaintiff and Henry C. Sisson, but say, “ they are, however, informed and so charge that the complainant has not paid any part of the sum of $200, which in the said bill is alleged was the price agreed upon for the parcel of land therein mentioned ; that at the time the said Vickers family left the said parcel of land, it was understood and considered by all parties to be a complete abandonment of the agreement between Henry C. Sisson and complainant.” They call for “ strict legal proof” of a full compliance of all the requisites of an agreement made by complainant with Henry C. Sisson, deceased, for the purchase of the tract of.land in the bill mentioned, before any deed therefor is ordered.”

They also tendered a special plea in writing, which was ordered to be set down for argument, viz: “that the promise, contract, or agreement mentioned in complainant’s bill, or some memorandum or note thereof, is not in writing signed by Henry C. Sisson, or by these defendants, or any agent of the said Henry C. Sisson, or these defendants.”

The infants answered by guardian ad litem, and there were general replications to the answers. A number of depositions were taken on both sides.

Upon consideration of all which, the court was of opinion “ that the proofs take the complainant’s case out of the statutes of frauds and perjuries, and holds the plea of said statute for naught, and that the complainant is entitled to the relief prayed for in his bill.” The court therefore adjudged, ordered and decreed that “the complainant is entitled to a specific performance of the contract set up in the bill, and to a deed for the land and premises therein mentioned, with a special warranty as to the heirs of said H. C. Sisson, deceased, to the extent of assets descended,” &c. The court did not direct a deed to be made, as there was nothing in the papers showing metes and bounds, but did order Sinnett, as surveyor, to make a plat from a former survey, or if he cannot, then to go upon the premises, after giving notice to all the parties, and survey and plat the same, and report his proceedings to the court, to which time the cause was continued.

In t he case of Lowry v. Buffington and others, decided by this Court and reported in 6 W. Va., 249, the principles applicable to a case of specific execution of a parol contract, are there fully stated, as also the nature and extent of the proofs sufficient to establish the same, and need not be repeated here. I am of opinion this case is, by the evidence, fully brought within the principles case> and that the evidence proves conclusively 'the material allegations of tbe bill. It shows that there has been a part performance of the contract for the sale of the land, by the purchaser being put into the possession oí the land, a payment of the purchase money, and valuable improvements made on the land by the purchaser. It further shows that Sisson not only admitted the sale, but also the payment of the purchase money and the making of improvements by , Vickers, and actually placed tenants in the house after Vickers had left, with the declaration that it was the property of Vickers, and that they must take care of it for Vick-ers. Leaving the property, under the circumstances, was not an abandonment of the contract, nor of the property. It appears from the weight of the evidence that the purchaser did all that the contract required him to do, and that the vendor neglected to make a proper deed, although he admitted it was his duty and intention to make it, and therefore, the circuit court did not err in adjudicating the principles as set forth in the decree complained of, but should direct a deed to be made to the purchaser. As to the $100 borrowed by Vickers from Sisson, that is a side transaction that has nothing to do with this case. Therefore, upon the merits of the case, and upon the principles laid down in Lowry v. Buffington, &c., just cited, and Purcell v. Miner, 4 Wall., 513, the decree should be affirmed, with costs and $30 damages against the appellant, and the cause should be remanded to the circuit court, to be there further proceeded in according to the principles and rules governing courts of equity.

Judges Haymond and Green concurred with Moore, Judge.

Decree Affirmed, with costs and damages, and cause remanded.