Fisher v. Brown , 1884 W. Va. LEXIS 102 ( 1884 )

Woods, Judge:

The only error complained of by the appellant is, that the court dismissed his amended and supplemental bill because there was no proof that Ruth Brown paid for the lands conveyed to her said heirs described in the supplemental bill, out of her own separate estate. The most material question arising upon this record "meets us at the threshold and must be disposed before we are called upon to consider the questions raised by the appellants, and that question is this: Is there in this record anything to show that there was any personal liability resting upon the defendant, Thomas Brown, to pay the plaintiff any portion of the purchase-money due to him from the defendant, John L. Hamilton? If there "was not, then it becomes unnecessary to consider whether the supplemental bill was properly dismissed or not, for if the plaintiff had no debtagaihst Thomas Brown, he can have no interest in the lands conveyed to Ruth Brown which she conveyed to her children. The contract of sale between the plaintiff" and the defendant, Hamilton, as ■well as the endorsements thereon modifying the rate, and releasing part of the interest accrued thereon, as well as the assignment thereof to the defendant, Brown, have evidenty been drafted by a skillful hand, and that, not the hand of Thomas Brown, who signed his answer with his cross-mark. But by whomsoever prepared, there is neither uncertainty nor ambiguity in their meaning, and the plaintiffs bill in setting forth his cause of action, as well as the deposition of the plaintiff taken in his own behalf, are equally certain and perspicuous in all their statements.

From the bill and exhibits the transaction appears to be exceedingly simple, and the legal liabilities arising out of the same easily understood. The plaintiff owned the land; the defendant, Hamilton, desired to purchase it upon long credits with interest upon the whole price, paying five hundred dollars of the principal annually; the plaintiff' was willing to sell to him on these terms at the price of eight thousand dollars and to convey the same in fee simple wdth covenants of general warranty when all of said purchase-money and the taxes chargeable on the land after the date of the purchase should be fully paid; and their contract recited that “whereas the vendor and vendees are advanced in life, and may not live until the payments are made, in order to prevent trouble hereafter, as to the title to said land, said Fisher is to be at liberty at any time to make said conveyance to said Hamilton, and said Hamilton will execute and acknowledge for record a deed of trust on said land to secure the payment of the purchase-money or the unpaid part thereof ■with its interest to said Fisher, his personal representatives or assigns.”

This contract imposed upon Hamilton the legal obligation to make the payments stipulated therein, and upon the plaintiff the equitable obligation to convey the land when all the purchase-money and taxes thereon were paid by Hamilton. Fisher was secured in his purchase-money by the vendor’s lien on the land and by the personal obligation of the vendee’s covenant to pay; and the vendee was secured by the covenant of his vendor to convey the land. Thus matters stood until the 1st day of March, 1872, when having paid all the interest accrued thereon up to that date, he “ for value received, assigned all his right, title, interest, claim and demand of, in and to, the within contract to Mr. Thomas Brown.” There is nothing in this assignment nor in any part of this record to show, and neither has the plaintiff stated in his bill nor in his own deposition taken in support thereof, any allegation that the said Thomas Brown, at the time of said assignment to him, or at any time afterwards, ever undertook, assumed, promised or hound himself to pay to said plaintiff any part of said purchase-money. So far as this record shows, there existed no privity of contract between the plaintiff and said Brown. It is true he purchased the land from Hamilton, and that when'he purchased it he. knew that there was still eight thousand dollars of purchase-money due to the plaintiff from Hamilton, and the land in his hands was charged with a vendor’s lien to secure the same. He stood simply as a man who had purchased an estate incumbered with a mortgage equal to its full value; if he would retain the estate he must discharge the mortgage-debt; if he failed to pay, the land was liable to be sold, but in neither case was he personally liable for any part of the mortgage-debt, in the absence of any promise, express or implied, to pay the same. This was the position occupied by the defendant, Brown, when, the contract was assigned to him, and such was the position in which the plaintiff evidently regarded him when he filed his bill. Being in possession and claiming the land, he was a necessary party to the suit; the land in his hands was liable to be sold to satisfy the vendor’s lien created thereon by Hamilton, and this was the measure of relief against him to which the plaintiff was entitled and this was the relief prayed for.

The plaintiff at the hearing of the cause on March 22, 1876, was clearly entitled to a decree against the defendant Hamilton for the sum of five thousand four hundred and sixty dollars, with interest from that date and costs, and in case of default made in the payment thereof that the said two hundred and sixty-two acres of land then owned by the defendant Brown should be sold to satisfy the same, but he was not entitled to a personal decree against said Brown for that sum of five thousand four hundred and sixty dollars, or any other part of said purchase-money, and the decree therefore as to him was erroneous, and but for the fact that it subsequently appears that he was not injured thereby the decree for that cause would have to be reversed. But as it appears from the decree confirming the-sale of said land that the ]and was purchased by the plaintiff at the price of seven thousand four hundred dollars, and the whole amount of this erroneous decree was in tact satisfied out of the proceeds of said sale as it ought to have been if said decree had been properly entered against the said Hamilton, the defendant, Thomas Brown, has not in any manner been prejudiced thereby, and this Court will not, therefore, for that error alone reverse said decree of March 22, 1876.

But the decree entered in this cause on the 10th day of March, 1881, can not in any view of the case be sustained. Without petition, notice or process, whereby the defendants, or either of them, are cited to appear, the court proceeded to re-hear the cause, and ascertained that since the rendition of its decree of March 22, 1876, five other of the installments of five hundred dollars each, mentioned in the bill, with six hundred dollars of interest amounting to the sum of three thousand one hundred dollars had become due,' upon which the defendant Brown is entitled to a credit of one thousand six hundred and sixty-six dollars and five cents accruing from the proceeds of said sale which left one thousand four hundred and thirty-three dollars and ninety-five cents with interest from March 1, 1881, and decreed that the defendant Brown pay this amount to the plaintiff. Even if this decree had been correct in principle, it was erroneous in amount for the said one thousand six hundred and sixty-six dollars aud five cents due from the plaintiff on account of his purchase of said land from said commissioner by the terms of the decree directing the sale, bore interest from the day of sale, viz, July 5, 1876, the correct balance including interest to the first day of March, 1881, was two thousand one hundred and thirty-one dollars and forty-three cents, which deducted from three thousand one hundred dollars would have left the correct balance, nine hundred and sixty-eight dollars and fifty-seven cents, instead of one thousand four hundred and thirty-three dollars and minety-five cents.

In this view of the case it is immaterial what amount was due the plaintiff' on the residue of his purchase-money, as the defendant, Thomas Brown, was not in any manner bound or liable to pay the sanie, and the said decree of March 10,1881, must for that cause be reversed. This conclusion renders it unnecessary to consider the errors assigned in regard to the dismissal of the supplemental bill, for as we have already seen, the defendant, Thomas Brown, was not indebted to the plaintiff by reason of any of the matters alleged in his bill; and having no demand against him he has no right to call in question the validity or good faith of the several conveyances made to the other defendants named in the supplemental bill, and therefore the court did not err in dismissing it. It is therefore adjudged, ordered and decreed, that the decree of the circuit court of Jackson county, entered on the 8th day of August, 1882, be affirmed, and that so much of the said decree entered on the 10th day of March, 1881, as adjudges that the said “plaintiff recover of the defendant, Thomas Brown, the sum of one thousand four hundred and thirty-three dollars and ninety-five cents with interest thereon from the 1st of March, 1881, until paid,” and directing an execution to issue thereon, be reversed and annulled, and that the appellant pay to the appellees, as the parties substantially prevailing, their costs in this Court expended. And this cause is remanded to the said circuit court for further proceedings.

Affirmed in Part. Reversed in Part. Remanded.