Davis v. Settle , 43 W. Va. 17 ( 1896 )

Dent, Judge:

This is a chancery suit, instituted by James W. Davis against II. J\i. Mettle et al, in the Circuit Court of Fayette county. The facts of the case are as follows: Both parties claim under Marah Mtuart. In September, 1887, Seth Huso purchased from Sarah Stuart, by written agreement, out of a- large tract “fifty acres of land, on New river, including the upper improvement, that John Scott has in possession.” Huso sold Settle this fifty acres in 1845 by writing, providing that, when the purchase- money should be paid, IIuse should convey or cause to be conveyed, to Mettle. The agreement between Huse and Mtuart was a mere executory agreement, not muter .seal, and provided that. Huse might take in more land at fifty cents per acre. Sarah Stuart, by will devised her lands to her children, and empowered Samuel Price, her executor, “to convey any lands that may be sold at the time of my death.” -The lands were partitioned, and a live thousand eighty-three and a half acre tract was assigned to Agnes Peyton, in which was included the “Harrison Settle fifty acres,” on New river, so marked on the plat of partition. Agnes Peyton and her trustees sold and conveyed this land, according to the plat, to A. A. Low, April 22, .1874, ex-ohiding on the face of the deed the Harrison Settle fifty acres. Huse and Harrison Settle had been in actual possession of the land since the year 1887, and Settle was in possession thereof at the time Low purchased and continued thereon until a short time before the institution of this suit. April 8, 1874, Samuel Price, as empowered by the will of Sarah Stuart, executed a deed to Settle for fifty acres, by metes and bounds, but which did not include the thirty acres now in controvesry, and which Settle was then in possession of, as the Huse land. The deed was not delivered to Settle until March 5, 1878, when Huse gave it to him, taking his receipt therefor on his bond, in words as follows: “Rec’d of Harlow Huse, Samuel Price’s executor’s deed for the within-described land, this 5th March, .1878.” It was recorded March 28, .1878. Afterwards, when Low claimed the land in controversy as not covered by Settle’s deed, Settle refused to give it up, and claimed the. boundaries of the deed were wrong, and that he was entitled to the land, as shown on the partition map, as bounded by New river, and of which he had been in possession. Low brought an ejectment suit against him, and the plaintiff, Davis, agreed to defend suit and pay the costs, in consideration of one-half the recovery. This agreement was reduced to writing, and duly recorded, as required by law. The suit was twice tried and each time resulted in a verdict in favor of Low. Settle appealed, and this Court reversed the case both times; the last time holding that Low’s deed did not cover the disputed land, and that Samuel Price’s deed was void, in so far as it conveyed other land to Settle in lieu of that in suit, thus virtually determining the case against Low. 9 S. E. 922. In tlic meantime, Low had leased bis land, or a part thereof, including the disputed tract, to the defendant, the Rush Run Ooal Company. Settle was still in adverse possession thereof. On the 3rd day of September, 1888, the Rush Run Ooal de Coke Company, Low’s tenant, with full notice of Davis’ claim to half this land, both actual and constructive, obtained from Harrison Settle a deed purporting to convey to it the fifty acres deeded to him by Samuel Price, including within its boundaries the part thereof that had been disclaimed by Settle in the case of Low against him, and containing this recital: “It being the intention of the party of the first part to convey only such land as he now owns on the south side of the river within the lands of A. A. Low.” Having thus parted with his whole interest, he surrendered possession of the land in controversy, and the Rush Run Ooal & Ooke Company took possession thereof, as they now claim, as the tenant of A. A. Low. Low, having thus obtained possession of the land through his tenant, dismissed his action. Plaintiff, learning of this, and on the 80th day of ¡September, 1889, having obtained a deed according to his title bond, instituted this suit to know just how he stood, and have partition of the land between himself and the person appearing entitled thereto.

In the suit of A. A. Low against ¡Settle, this Court held that ¡Samuel Price had erroneously executed his power as executor of the will of Sarah Stuart. Such being the case, having once executed the power, though erroneously, he never could correct it, as the deed had been delivered, and admitted to record, and the only way his mistake could be corrected was by the interference of a courPof equity, and then only as against those having full notice thereof. When the deed passed out of his hands into the hands of Settle, Low already had his deed, and he knew just where the Huso land lay, that Settle had in actual possession. Hence he made his purchase with full knowledge of Settle’s rights as to said land, but when lie discovered afterwards that the Price deed did not cover the land in controversey, in February 1881, he began his ejectment proceedings. Settle, being in full possession of the land at this time, and until he surrendered possession, had the right to file his bill in equity to reform his deed in accord-anee with his possession, and prevent. Low’s deed from becoming a cloud thereon. It is conceded that the land included in the Price deed and that in controversey unquestionably belonged to Low and Settle, and no others were interested therein. Now the only other persons interested are the Rush Run Coal & Coke Company and the plaintilf, Davis. And there can he no question that Settle has no longer any interest in this controversey, for, when he made the deed to the Rush Run Coal & Coke Company, it-is plain from the deed that he intended to sell only and all lands owned by him within the boundary covered by Low’s lands. The word “only” was used, not only to show that he did not intend to convey the lands formerly disclaimed by him within the boundary, but as a reservation of the Davis interest, and also to indicate that he parted with his possessory title under the Iiuse purchase, including all interest, of every kind and character, within the Low boundary. It is plain to be seen that the object of this purchase was not the fifty acres covered by the Price deed, so much as it was to obtain the possessory title of ¡Settle in the Huse land, and thus divest Davis of any title thereto except equitable, and prevent him holding the same against Low, compelling him to sue at law, and then defeat him by a complete chain of title on Low’s part and a. want of title on his part. Both Low and the Rush Run Coal & Coke Company had constructive and actual notice of Davis’ rights. In I Perry, Trusts, § 223, the law is stated: “If in any way a person purchases with what the law construes to be full notice that another has a legal or equitable title to the property, or that he has been deprived of ■ his interest by accident, mistake, or fraud, he will be held as a trustee.” The Rush Run Coal ck Coke Company is the tenant of Low, and all its purchases of outstanding title to Low’s land inure to the latter’s benefit, with or without the consent, of such tenant, while the tenancy continues. Settle’s equity to the land in controversy was superior to Low’s, also was Davis’ equity, he having acquired from Settle. Settle’s possessory ■ title was also superior to Low’s, but Low’s tenant, who must be considered Low’s agent for the purpose, obtained Settle’s posses-sory title, to the benefit of which Davis was entitled, of which Low had full notice, by purchasing all of Settle’s interest as aforesaid. Hence both the agent and principal should be held as trustees of such possessory title for the benefit of the plaintiff, whom they have defrauded by purchase from Mettle. It is true the tenant did not effect the transfer of the possessory title by the open and direct purchase thereof, but accomplished its purpose just as effectively by the indirect purchase, so that it concealed its object, that every one that runs might not read. Together the landlord and tenant have managed to outwit justice so far as a legal forum is concerned, for they have the necessary title papers to cover the land. The landlord can say, “I have title to the whole land, except Harrison Mettle’s 50 acres, excluded in my deed.” The tenant can say, “I have a deed from Harrison Mettle, for his 50 acres. ” Both titles are complete. Ts not this a plain case for the interference of a court of equity, especially when its purpose is to circumvent the adjudications of such court, and defeat what- it has determined to be justice?

There is still a further ground for equitable interposition. When Davis acquired his right from Mettle, he acquired along with it the right to have the Price, deed so reformed as to cover the land in dispute, to at least the extent of his moiety thereof, except as against purchasers for value, without notice. The tenant, by its deed, has acquired thirty acres of land, which properly belonged to Low, and which Mettle disclaimed, and has never owned, though the legal title was in him by clear misunderstanding. Mettle wanted to surrender this land, and hold the thirty acres, which rightly belonged to him. But Low wanted to make the trade because the Huse thirty acres was the more desirable. Now, the tenant having purchased with full notice of the rights of Mettle and Davis, although it has acquired the right, if acting in good faith, to have the Price deed reformed so as to cover the Huse thirty acres, but as it has leased from Low this same thirty acres (on what terms is not disclosed), it is willing to yield its rights if not legally compelled to, and let Low hold the same under his deed. Thus are they together in possession of the land to which plaintiff is entitled, with title papers fully covering the same, while the plaintiff has a superior equitable title, of which they had full notice when they acquired complete legal title thereto; hence they must be held as trustees in sotaras plaintiff’s rights are concerned. By their conjunctive acts, the defendants have debarred the plaintiff from seeking relief from the representatives of Mrs. Stuart’s estate, and equity will require them to grant him the relief which but for their collusion he might have had from others. By the adverse decision by this Lourf as to Low’s deed, covering the land in controversy, which was a virtual determination of the suit, although still pending, the statutory bar of ten years rendered Settle’s adverse possessory title indefeasible. The pendency of such suit only stayed the running of the statute as to such suit, and not as to any other proceedings. And on its dismissal by the plaintilf Low therein, in so far as the plaintiff Davis is concerned, it must be considered as though it had never been brought; thus leaving the landlord, by reason of the purchase thereof by his tenant, in full investment of Mettle’s indefeasible title, subject to Davis’ equitable rights therein.

Equity jurisdiction is so plain on the grounds aforesaid that it is hardly necessary to discuss the question .of possession. But even on this question, from the pleadings and proofs, the law is clearly with the plaintiff. Oo-ten-ancy is a question of possession entirely, without regard to title. The law presumes that possession is under title papers, unless such presumption is destroyed by the facts and circumstances established to exist by the evidence. Mettle owned the land in controversy by color of title, rendered indefeasible by actual adversary possession as to Low for a period of more than ten years, acquiesced in by those under whom he claimed. The purchase money was fully paid, and actual occupancy, even if flic Huso title bond was indefinite, satisfied the statute of frauds, and estopped his vendors from denying his right to the land so held by him. In addition thereto, they had it platted off to him in making) the partition, and under which Low purchased. For some reason not thoroughly apparent, Brice made him a deed for fifty acres, including therein thirty acres of land which belonged to Mrs. Peyton (after-wards Low), and not including the land which he was actually occupying, and on which his house and improvements were situated. It is claimed that this was done at Settle’s instance. Settle never received his deed until 1878, long after Low had his deed, and had gone into possession of his land, with full notice of Settle’s occupancy and claim. While he received the deed, Settle claimed that he did not know but what it covered his land; and he would not accept or take possession of the Low thirty acres, or move his buildings thereon, but positively and continuously refused to do so. Low, linding out the condition of affairs, determined to compel Settle to take his thirty acres included in the deed, in exchange for the thirty that in reality belonged to Settle. For this purpose, instead of offering to correct the mistake, or instituting a chancery suit to reform Settle’s Price deed as a cloud on his title, he brought his action of ejectment. For almost ten years it was carried on, and Settle, to prevent Low from succeeding, was compelled to sell one-half of the land to the plaintiff, to enable him to’ defend his possession. This is called “champerty.” If it is so, it is honest champerty, such as a court of equity will not avoid at the instance of the person who was the unjust cause thereof.

Champerty is a species of maintenance, and, while maintenance has not been directly abolished by statutory enactment, it has been so indirectly encroached upon as to render it almost obsolete. At common law, maintenance is said to be an officious intermedliug in a suit that in no way belongs to the medler, and signifies an unlawful taking in hand, or upholding oil quarrels or sides, to the-disturbance or hindrance of common right. Champerty is the unlawful maintenance of a. suit in consideration of a part of the matter in controversy. The reason of the law was that maintenance tended to suppress justice and truth, work delay, and stir up strife, and all maintenance of a suit by a stranger was at common law unlawful, and was considered mahnu in .sc, as it permitted the wealthy to oppress the poor, and rob them of their small inheritances. No mere cho.se in action was assignable. Now, almost any cause of action is transferable; and attorneys are permitted to take any case on a contingent fee, and nothing can be considered maintenance the end whereof is justice, but only such conduct as is malicious or oppressive in its nature. An attorney who takes advantage of the circumstances of liis cliont, and, under the pretence of charging him a fee, defrauds him of his property, or one who, to vent his private malice, upholds an unjust cause, in which he has no interest, would probably he regarded guilty of maintenance, and, at the instance of the client in the former case, the contract would bo avoided. The right to purchase a. lawsuit is not now denied. The plaintiff would have had the right to have purchased Settle’s entire interest, and to have carried on the litigation to duality for himself. Why not, then, purchase a half interest contingent on the result? This Court, at least, will not hold it to be maintenance of an unjust cause which it has already decided to he just. While the court will prevent its officers from being oppressive toward their clients, it will also protect them against the manipulations of those who seek to evade the force and effect of its decisions, and thus deprive the attorney of his earned fee. There should be honesty even among opposing litigants towards the attorneys of their opposers. Attorney’s fees should' not he less sacred than other obligations, and they should respect each other’s rights with regard thereto. Much disrepute has been brought on the profession, not more by the charge of extortionate fees than the disposition on the part of the profession to disparage the services of other members thereof, and to lend their aid to any scheme which will enable others to prevent an attorney from reaping the reward of his labors as a punishment to him for having sustained the cause of an opposing litigant. This does not apply to the management of the present case, but to the conduct of Low and the Rush Run Coal & Coke Company when they undertook to buy out (Settle, — that they did not consult his attorney of record, known to them to be personally interested in the litigation, and make their purchase complete. Had they done so, they would have probably been saved much trouble, expense, and mortification. Settle was an ignorant old man, but he knew that the law would not deprive him of the land on which he had resided for so many years. When the ejectment suit had reached such a condition, owing to the holding of this Court, that it was about to be determined against Low, his tenant, the Rush Run Coal & Coke Company, through its president, Effinger, with full notice of plaintiff’s rights, as shown by the evidence of Settle, presumably until Low’s consent. and knowledge, and undoubtedly for the benefit of the landlord, who accepted thereof, bought out Settle’s entire interest., paying, it is true, seemingly a good price therefor, but with its eyes open. The ejectment suit was then dismissed, because, as the answer of Low alleges, Settle “surrendered possession of the land,” but not because of the suit. When plaintiff filed his original bill, he did not know just how he stood, but considered himself a co-tenant with whomsoever might - own the other half of the land, — TjOw, Settle, or Low’s tenant, — and asked for partition. The answer claimed adverse, .possession under Low’s deed, by virtue of possession surrendered by Settle. If disseised at this time, plaintiff did not know it, and hence the disseisin was not perfect. For the following reason, when Settle sold and surrendered possession, it was the joint possession of himself and plaintiff in co-tenancy, so that Low and his tenant entered into that possession, and became co-tenants with plaintiff. When a person accepts the results, he also adopts the means by which they are attained. Low attempts, in after pleadings, to escape the effects of his admission in his first answer, by claiming that ¡Settle merely abandoned possession, and he entered under his deed. The transaction is too plain to justify any such evasion. The tenant took the possession, and not Low, although for his benefit, and took it direct from Settle. In his first amended bill, plaintiff is still in doubt as to his in-oper standing, and calls on the.defendants for information as to their claims, and finally, in his second amended bill, not appreciating or understanding his true position, charge's the defendants with being in forcible possession of the land. They, of course, claim adverse possession under adverse title. This Court, having decided, between- the same parties or privies, that Low’s deed did not cover this land, will not now permit such decision to be avoided by the act of one of the parties thereto, nor permit Low to claim possession under such deed. Poole v. Dilworth, 26 W. Va. 583.

Settle, when he-sold, had possession under adverse pos-sessory title superior to Low’s paper title. When the tenant entered by reason of its purchase, in behalf of its landlord, it entered into the possession of Hattie under his possessory title; and thereby both the tenant and landlord, as to such possession, became co-tenants with plaintiff. And the possessory title, while ordinarily it would bo merged into the paper title of those in possession, will not be so done to the injury of one entitled to the benefit thereof, nor in avoidance of an adjudieatioiuof this Court. A person out of possession, holding an inferior paper title, cannot buy out a co-tenant in actual possession to the detriment of the other co-tenants, and then claim to enter under his inferior title adversely to them; but he will be held to have entered into and hold under the co-tenancy possession, until actual perfect disseisin of them, by presumption from lapse of time, or as is said in the case of Pillow v. Improvement Co. (Va.) 23 S. E. 32, by “a clear, positive, and continued disclaimer of title and adverse right, brought home to the knowledge1 of the other. co-parceners.” in that case it was held that, to make constructive possession under an adverse title amount to perfect disseisin in favor of those entering under the co-tenancy possession, it must have continued the statutory period of ten years. It is different, however, if the possession is not under the co-tenancy, but is entirely independent thereof. Every presumption is in favor of the co-tenancy if it once existed, and it devolves on him alleging to prove perfect disseisin, or nonentry under such possession. It has not been done in this case, as no actual knowledge of or claim of disseisin was brought home to the plaintiff until after the institution of his suit. A co-parcener cannot be disseised without his knowing it until lapse of time raises a presumption against him which he is unable to explain or rebut; so that the tenant and landlord together must be regarded as the co-tenants of the plaintiff, for they have failed to establish perfect disseisin. Nor do they claim to be purchasers for value without notice, but, with full knowledge, they took the risk of plaintiff’s claim, and entered on the land, and improved the same. They, therefore, cannot be protected as innocent purchasers for value, without notice, although they may have sincerely believed that they would be able to defeat the plaintiff of his right to recover in any suit instituted by him. For this reason, they are not entitled to any allowance for their improvements. {"Settle lias no interest in this land or controversy, having parted with the same to the Kush Run Coal & Coke Company, and its landlord, Low; and the circuit court erred in decreeing' in his favor. TIis half of the land should have been allotted to his vendee and its beneficiary, as parties in co-interest in this controversy. According to the pleadings, he has the fee, and it is the lease or possession which belongs to both. This is a matter-between them, as their interests in this suit and the land appear to be mutual and identical. As these are the only questions involved in the rehearing, reference is made to the opinion of .Judge Braxxox, where all other questions are fully discussed and determined. This opinion, being written concerning points only about which the court disagree, is not intended to cover the whole case.

The decree will be reversed in so far as it adjudges Harrison Settle one-half the land in controversy, and amended so as to allot the same to the heirs of A. A. Low and the Rush Run Coal <fc Hoke Company, and in all other respects affirmed, with costs to the appellee Davis, as the party .substantially prevailing.