Thompson's Adm'r v. Catlett

Woods, Judge: Two grounds of error are alleged by the appellants, viz: First, in allowing the defendants the abatement of eight hundred and seven dollars on account of the interlock of two hundred and sixty-nine acres between the Van Burén land and the seven hundred and thirty-five acre tract; and second, in allowing the defendants a credit for said sum of five hundred and eighty-seven dollars and seventy-two cents. The plaintiffs in these causes are prosecuting a legal demand held by each of them, against the defendants, Fisher and Catlett, but having an equitable security, a vendor’s lien therefor, they are prosecuting these legal demands in a court of chancery. The plaintiffs stand in the same relation as if they had recovered judgments against the defendants for the amounts due upon said bonds, and the defendants, in the relation of plaintiffs in equity seeking to defeat the plaintiff’s legal demands by the equitable matters of defence, alleged in — 538 — the answer of Catlett. By this answer he claims to be entitled to a set-off of five hundred and seventy-eight dollars and seventy-two cents on account of money he was obliged to pay to satisfy judgment-liens created by S. S. Thompson upon his interest in the one thousand and forty-five acres of land conveyed by him and McPherson to Fisher and Catlett. This allegation is fully and explicitly denied by the plaintiffs in their special l’eply. There is no evidence in this record to show that any judgment against Thompson was ever recovered, or that any such judgment-lien existed against said lands, at the time said McPherson and Thompson executed the said deed to the defendants, Fisher and Catlett; nor that any portion of said lands was ever sold by Commissioner Patton, or purchased by said defendants. There being no evidence to sustain said credit of five hundred and eighty-seven dollars and seventy-two cents the same was properly disallowed by Commissioner Withrow, and the circuit court erred in sustaining the exception of defendant, Catlett, to said report, and allowing the said credit of five hundred and eighty-seven dollars and seventy-two cents as a credit upon the obligation of five hundred and twenty-two dollars and fifty cents claimed to be due to the administrator of S. S. Thompson. Wore the defendants, Fisher and Catlett, entitled to the abatement claimed by them because of the alleged interlock setup in the answer of defendant Catlett? They rest this claim to such abatement upon the ground that two hundred and sixty-nine acres of the tract of seven hundred and thirty-five acres conveyed to them by McPherson and Thompson by their deed of January 19, 1871, lay within the boundaries of the Van Burén land, then owned and held by them under his title, which was an older and better title than that of McPherson and Thompson to said tract of seven hundred and thirty-five acres, and that for this reason the title to said two hundred and sixty-nine acres, the amount of interlock was clearly defective. It is not alleged by the defendants that they were in any manner defrauded by their said vendors, or that they have in any other manner been deprived of the benefit of their, purchase of said tract of seven hundred and thirty-five acres. — 539 — It is perfectly clear from the face of the deed made to the defendants by McPherson and Thompson dated January 19, 1871, that while the two parcels of land thereby conveyed were sold for a gross sum of three thousand one hundred and thirty-five dollars, which was an exact multiple of the estimated quantity of land at three dollars per acre, and that the moiety of the six hundred and twenty acre tract thereby conveyed was a sale in gross, it is equally clear that the sale of the seven hundred and thirty-five acre tract was a sale by the acre at the price of three dollars per acre, and that for any deficiency in the estimated quantity of acres contained therein, the defendants were entitled to an abatement from the purchase-money agreed to be paid therefor at the same price per acre. Being in fact a sale by the acre, the defendants in the absence of any express agreement to that effect, would have been entitled to such abatement, for it is well settled that if a deficiency in quantity is found to exist, where the contract is a sale by the acre, the purchaser will be entitled to an abatement for the value of the deficiency, and that a court of chancery will, even after a conveyance executed, injoin the collection of the purchase-money to that extent. Neither can it now be doubted, that if the title of the vendor to the whole or any part of the land sold, be shown to be clearly defective, a court of chancery will, even after conveyance, with covenant of general warranty executed, and accepted by the vendee who is in possession of the land thereby granted, grant relief to the vendee by injoining the collection of the unpaid purchase-money to the extent of the loss caused by such defect of title; but in such a case the burden of proof rests upon the vendee to show that the title derived from his vendor was clearly defective. Koger, &c., v. Kane’s adm’r, &c., 5 Leigh. 606; 3 Rand. 44. In the case last cited Judge Green, delivering the unanimous opinion of the court, said : “This court has in favor of purchasers gone far beyond anything which has been sanctioned by the courts of chancery in England, or elsewhere, in injoining the payment of the purchase-money after the purchaser has taken possession under a conveyance, especially with general warranty. Yet it has never gone so far as to interfere unless the — 540 — title was questioned by a suit prosecuted, or threatened, or unless the purchaser could show clearly that the title was clearly defective.” See Wamsley v. Stalnaker, &c., supra. It was admitted by the defendants’ counsel as matter of proof in these causes “that Joel McPherson was equally interested with S. S. Thompson in the lands sold by them to E. II: Catlett and Howell Fisher as in the bill is set forth; that McPherson received from said purchasers the same amount as the cash payment that was paid to Thompson, and that the said purchasers executed to McPherson two bonds for the deferred instalments in all respects similar to the bonds executed to Thompson, and which are the subjects of these suits, and that said bonds of McPherson were promptly paid in full, without any claim or demand for an abatement in consequence of an alleged deficiency in the land sold, or for any other reason whatever; and that the said McPherson has never been, and is not now called upon to refund any part of the money thus paid to him.” The only other oral testimony taken in the causes before the order’of reference was made were the depositions of the witness Bright and of the defendant Catlett already referred to. In this condition of these causes the order of reference and the commissioner’s report upon the matters referred were made. Now in a case properly referred to & commissioner his report upon the matters referred, if erroneous upon its face may be objected to on the hearing, although not excepted to; but unless it is excepted to, it can not be impeached by adult parties on grounds relating to matters which may be affected by extraneous testimony. If such adult parties fail to except to such report, it will be presumed they were satisfied with it, and acquiesced in its correctness, not only so far as it settles the principies of the account, but also in regard to the sufficiency of the evidence upon which it is founded; and these exceptions must point out the errors complained of with such reasonable certainty as will direct the mind of the court to them; and even when he does so, the parts not excepted to, unless erroneous upon the face of the report, are admitted to be correct, not only as regards the principles, but also as relates to the evidence on which they are founded. Perkins v. Saunders, 2 Hen. & M. — 541 — 420; Wyatt v. Thompson, 10 W. Va. 645; Hyman, Moses & Co. v. Smith &c., Ib. 298; Alderson v. Nagle, 14 W. Va. 213; McCarty v. Chalfant, 14 W. Va. 531; Chapman v. Pittsburg & Steubenville R. R. Co., 18 W. Va. 184; Ward v. Ward, 21 W. Va. 262. By section 7 of chapter 57 of the Acts of 1822 it is provided, that “when the commissioner has completed his report, unless it be otherwised ordered by the court, or agreed by the parties, he shall retain it. ten days for their examination. Any party without being at the expense of taking a copy, may inspect the report and tile exceptions thereto; and the commissioner shall, with his report, return the exceptions and such remarks thereon as he may deem pertinent, and the evidence relating thereto. But any party may except to such report at the first term of the court to which it is returned or by leave of the court after said term.” It will be observed, that unless his report is excepted to, during the ten days he retains it for examination, he is neither expected nor required to return with it the evidence that was before him on which he acted, but it is only when his report is excepted to, while it remains in his office after it is completed, that he is required to return any of the evidence before him, and even then he .is only required to return that part-of the evidence which was before him in regard to the matter excepted to upon which he acted in making up his report. If therefore the commissioner’s report is not excepted to, while it remains in his office after it is completed, the evidence that was before him on which he acted forms no part of his report unless specially made so by the report itself or the order of the court. It follows therefore in almost every ease, that where there are no exceptions to his report filed with the commissioner the court to which it is returned cannot know what evidence was before him, and must therefore presume that he had before him sufficient evidence to sustain his report, or else the party injured thereby would have excepted. Whether it is proper in any given case for the circuit court to direct a reference to a commissioner or not, is a matter in which that court must of necessity exercise a wide discretion, and this Court will not for that cause alone reverse — 542 — a decree otherwise correct, although it may be of opinion that some of the questions referred may be snch as the court itself, and not 1 he commissioner, ought to determine. In the cases under consideration, all the questions referred to the commissioner except perhaps the first were proper subjects for his consideration and decision. "Whether if was proper to require the commissioner to report, “ which is the oldest and best title," the one under which the defendants hold what is known in this cause as the Yan Burén land, or the one under which they hold what is known as the McPherson and Thompson land,” or not, is a matter of doubt in the mind of this Court. It becomes however immaterial in these causes, as the commissioner specially reports the dates of the several grants from the commonwealth of Virginia under which the defendants held the Yan Burén land, and also a similar grant to Joel McPherson under which he and Thompson held the seven hundred and thirty-five acre tract, together with the dates of said several grants, and that the last named grant is part of the same land conveyed by McPherson and Thompson to the defendants, Catlett and Fisher by the deed dated January 19, 1871, and concludes as follows: “Your commissioner is of opinion therefore, that the Yan Burén title is the older and better title.” It is evident from the report itself, and from the fact that no exceptions were filed to said report either before the commissioner, or in court, by the plaintiffs, that there was no evidence of title before the commissioner except the several grants from said commonwealth, and the deeds conveying said lands from the original owners to the defendants, Fisher aud Catlett, and in the absence of all other evidence the commissioner correctly decided that the Yan Burén was the older and better title. The defendants excepted to the report of the commissioner within ten days after it was completed, because he disallowed the credit claimed of five hundred and eighty-seven dollars and seventy-two cents, as of April 23, 1873, alleged to have been paid Commissioner James F. Patton, and as evidence of his right to such credit, he specially referred to the sight draft drawn by Patton on Echols, Bell and Catlett dated April 23, 1873. Yo other evidence in support of this credit is referred to by the exceptor, and no other is reported by the — 543 — commissioner, and from his report it is quite evident no other evidence was before him, and he very properly disallowed the same as a credit upon'the amounts claimed by the plaintiffs. The commissioner reported that two hundred and sixty-nine acres of the seven hundred and thirty-five acre tract, lay within the boundaries of the Yan Burén land which was held by the defendants by the older and better title, and that the value thereof at three dollars per acre amounted to the sum of eight hundred and seven dollars, which deducted from the two obligations of five hundred and twenty-two dollars and fifty cents each, claimed by said plaintiffs, left due thereon as of January 19, 1871, the sum of two hundred and thirty-eight dollars with interest from that date up to November 1, 1882, aggregating on that day the sum of four hundred and six dollars and eighteen cents. It is evident from the admissions of the defendants’ -counsel, that McPherson and Thompson were equally interested in the sale of said lands to the defendants Fisher and Catlett, and that he has been paid his full half of the purchase-money, that only one half of said abatement ought to be deducted from said obligations held by said plaintiffs, and that the report of said commissioner ought to be so modified, as to find the amount to be abated from said obligation to be the sum of four hundred and three dollars and fifty cents, leaving due thereon on January 19, 1871, the sum of six hundred and forty-one dollars and fifty cents with interest from that date until paid. "We are therefore of opinion that the report of said commissioner be modified as aforesaid and in all other respects confirmed. We are therefore further of opinion that the defendants are entitled to an abatement from their purchase-money due to the said plaintiffs, the sum of four hundred and three dollars and fifty cents as of the date of January 19, 1871; and that the plaintiffs, William Mr Coffman and A. II. Bader as the administrators of Samuel Coffman, deceased, are entitled to recover from the defendant B. II. Catlett, and from the defendant J. W. Johnston, administrator of Howell Fisher, deceased, out of the assets of his intestate in his hands to be administered the sum of five hundred and twenty-two dollars and fifty cents with interest thereon from January 19, 1871, until paid; and that — 544 — the said debt having been assigned to said Samuel Coliman on July 12, 1871, for value received by said S. S. Thompson the same is entitled to be paid in lull out of the proceeds of the sales of the said lands conveyed by McPherson and Thompson to Fisher and Catlett, before any portion of the proceeds of such sales shall be applied in satisfaction of any part of the purchase-money remaining due to the administrator of S. S. Thompson; and we are further of opinion that the plaintiff J. W. Johnston administrator of S. S. Thompson, deceased, is entitled to recover from the defendant 14. JEL Catlett, and from the defendant J. W. Johnston, administrator of Howell Fisher, deceased, out of the assets of his in.testate in his hands to be administered the sum of one hundred and nineteen dollars, the residue of said obligation of five hundred and twenty-two dollars and fifty cents held by said intestate after deducting therefrom the said abatement of four hundred and three dollars and fifty cents with interest on said one hundred and nineteen dollars from the 19th day of January, 1871, until paid, and that to secure the amount herein ascertained to be due to the said plaintiffs respectively, a vendor’s lien exists upon the moiety of said six hundred and twenty acres, and upon the tract of seven hundred and thirty-five acres of land conveyed as aforesaid to Fisher and Catlett; and we are further of opinion the plaintiff's by the levy of their several attachments sued out in these causes against the estate of 14. H. Catlett on September 13, 1881, acquired attachment liens as of that date, upon the interest of said Catlett, being an undivided sixth in the following tracts of land, all situated in Greenbrier county on the waters of Anthony’s creek, viz: Six hundred and eighty-seven and one fourth acres conveyed to 14. H. Catlett and Howell Fisher by James Scott by deed dated November 22, 1870; one thousand three hundred and five acres conveyed to the same parties by Jesse Hull and William E. Boswell by deed dated November 22,1870; four thousand acres conveyed to same by Jacob Van Burén by deed dated November 22,1870; one hundred and fifty-five acres conveyed to same by B,. H. Maury by deed dated December 15, 1870; one hundred and thirty-four acres conveyed to same by Moses TI. Perry and John F. Perry by deed dated — 545 — November 22, 1870; two hundred acres conveyed to same by Elizabeth May, Moses H. Perry and John F. Perry by deed dated November 22, 1870, and one hundred and fifty-five acres conveyed to same by Thomas Matthews by deed dated January 16, 1871, and that in case a sale of said lands or any of them became necessary to satisfy the debts herein-before declared to be due to said plaintiffs respectively, we are further of opinion that none of the lands attached as aforesaid should be sold uutil the said land conveyed by said McPherson and -Thompson to Howell Fisher and R. H. Catlett shall be first sold and the proceeds thereof prove insufficient for the payment of the amounts due- to said plaintiffs. For the reasons hereinbefore stated the decree of the circuit court of Greenbrier county rendered in these causes on November 9, 1882, as well as the decree rendered on November 11, 1881, must be reversed with costs to the appellants against all the appellees, and the causes must be remanded to the said circuit court for further proceedings there to be had therein according to the principles announced in this opinion, and further according to the rules and practice in courts of equity. Reversed. Remanded.