Graft v. Loucks

OpinioN, Mb. Justice Gbebn : It is scarcely necessary to add anything to the careful and exhaustive opinion of the learned judge of the court below. He has reviewed all the points of contention, and has discussed fully and justly the entire substance of the testimony. [463] Tlie ease differs materially from the ordinary run of eases in which parol contracts for the sale of real estate are sought to be enforced. That there was such a contract in this case, with the land fully described, its boundaries designated, the precise amount of the consideration fixed, possession actually delivered by the vendor and taken by the vendee, is an indubitable fact perfectly established by the testimony of all the witnesses, including the defendant, who testified on this subject. But the case went further than that. A deed for the premises sold was actually prepared at the instance of the vendor, was signed by all the parties interested in the land, was acknowledged before a magistrate, and was fully sealed and delivered to the vendee. What had before been only a parol contract thereby became, not only a written contract for the sale of the land, but an actually executed and completed deed of conveyance operative to pass the title of the vendors to the vendee. What subsequently happened is not a matter of any serious dispute on the testimony. After receiving the deed from the defendant, the plaintiff, upon examining it, complained that it did not give him all the land he was entitled to, and he says ho handed it back to the defendant, who agreed to have it made right, and to hold it for that purpose until the following Saturday evening. George Graft, a witness for the plaintiff, who was present at the delivery of the deed, says there were two deeds delivered, one from J. S. Loucks for $125, and one from P. S. Loucks for $150; that they were both presented at the same time, and then adds, “ Graft kept deed of J. S. Loucks, but handed the other back; some talk of the deed not calling for the amount of laud purchased; don’t know what Peter said; ho took the deed, and I think was to make it satisfactory; think Peter was to have it next Saturday.” Jacob S. Loucks, another witness for the plaintiff, and a brother of the defendant, testified that there were two lots sold, one by him for $125, and one by his brother for $150; that he was present when both deeds were delivered; that the purchase money of both lots was deducted from the amount owing to the plaintiff; and then, as to the deed from Peter, said: “ Graft did not keep this deed; handed it back to Peter; claimed deed did not call for lines as they had been located; did not give amount of ground; [464] don’t know what Peter said.” The defendant admits making the contract, and that the price was to be $150, and adds, “ I thought I would make him a title as he had first bought: I ordered Shipley to write the deed; Mr. G. (plaintiff) knew nothing of this, and asked several times for deed; I said I had ordered it, but not received it; when I got it I notified him; he and Isaac Taylor came to my house, examined deeds, compared them, and made no objection; told me to have them acknowledged ; we did so; then they went and put up fences. That is all I knew for a month or two, when he came to settle for work done; he then raised objection to deed, and refused to accept it; said he had not one fourth acre ; he said if we would make deed to.middle of street he would accept it; I offered him the deed at time of settlement; mother, sister, and I had signed the deed.When I was on the ground nothing was said; this was before tender of deed, but after he had examined it; he put up fence before he made any objection to deed.” He also said on cross-examination, “I did not deliver the deed to Graft; I offered it, he would not take it.”' But the great preponderance of the testimony was that the deed was delivered to Graft, who, after that handed it back to the defendant, not to keep, but to have it .corrected. The plaintiff also said that he demanded the deed again from the defendant a number of times, but that he refused to return it. This is not contradicted by the defendant. The plaintiff further testified that he told Loucks he would take the deed as it was, as he wanted no trouble, and added, “ I am still willing to take it.” We are clearly of opinion that the deed was actually executed and delivered, and only returned to the defendant for a temporary purpose, which he never fulfilled, but determined to keep the deed permanently, and finally destroyed it, because the value of the land had largely increased. Of course the destruction of the deed by the defendant was a mere act of spoliation, which can give him no advantage. On the question of the payment of the purchase money, the testimony is equally clear. The plaintiff had been working for the defendant and his brother, burning for them a large quantity of bricks. The brother testifies that the purchase money for both lots sold to the plaintiff was taken out of the money they owed him. There was no doubt as to how this was in re [465] gard to tbe lot be sold, as he testifies to it himself; nor can we doubt that it was also the fact in regard to this lot. The plaintiff, and George Graft, and J. S. Loucks all testify to it, and the defendant alone contradicts it. But even he admits that he owed the plaintiff $165.99 on the settlement that was made in April, 1878, when the deed was tendered or delivered, less interest from that time till March 7,1874, at which time he offered that sum to plaintiff, who refused to take it. The defendant further admits that he still owes this money to the plaintiff. In view of all this testimony, it is clear that the purchase money was to be paid by appropriating $150 of this money-to the payment of the consideration of the deed, and that it was so agreed at the time. There is no doubt under the testimony that the plaintiff took actual possession of the lot very soon after the parol contract was made, with the full knowledge and consent of the defendant, and that he made fences around the lot which have been maintained. The defendant says he tore away the front fence, once, but admits that Graft replaced it. There was also some evidence of cultivation by Graft. Defendant testifies as follows: “ The fences he made enclosed the ground I tendered deed for; he has never been in possession of any ground except that described in the deed.” George Graft testifies, “ Plaintiff has been in possession over since fence was put on the lines as pointed out.” It thus appears that the terms of the original contract are established by clear, precise, and indubitable testimony; that the contract was so far executed as that the vendor and others interested in the title, executed, acknowledged, and delivered a deed for the property to the vendee, which was subsequently handed back to the vendor for a temporary purpose, which the vendor has not fulfilled, but bas kept the deed permanently and wrongfully; that the whole of tbe purchase money was paid at the time the deed was tendered and delivered, and yet remains in the possession of the vendor; and, further, that possession of the premises was delivered by the vendor to the vendee, who has ever since retained it. In these circumstances, we have no hesitancy in saying that all the requirements of'the law have been complied with, and that the plaintiff is now entitled to have from the defendant as perfect a deed as the defendant can give him. There is no merit in the allegation of laches. After repeated [466] unsuccessful efforts of tbe plaintiff to get back bis deed during 1874 and 1875, be filed tbe present bill in March, 1876. Tbe causes for tbe delay in tbe subsequent proceedings we do not know, and we are therefore not at liberty to charge them upon tbe plaintiff. Tbe assessment and payment of taxes gives no title, and takes away none. Tbe decree of tbe court below is affirmed, and tbe appeal is dismissed at tbe cost of tbe ap- • pellant.