Norfolk Trust Co. v. Foster

Lewis, P., after stating the case, delivered the opinion of the court. The appellant insists that the decree of October 5, 1876, construing the deed of Shultice and wife to Poster, and the decree of September 23, 1879, refusing leave to file a bill of review to that decree, are erroneous, and that the decree of December 22, 1880, is also erroneous because based on those decrees. We are of opinion that none of these objections are well founded. The deed in question must be construed according to the intentions of the parties thereto, as manifested by the terms employed by them. There is nothing ambiguous on its face, and consequently there is no necessity to Tesort to extrinsic testimony. The case is not one in which the courses and distances vary from the natural boundaries set forth in the deed. Where that is the case it is well settled, as the authorities referred to by the counsel for the appellant show, that the rights of the parties are determined by the latter, and not by the former. As was said by Judge Pendleton, in Shaw v. Clements, 1 Call, 438, “ Our juries generally, and wisely, establish reputed boundaries, disregarding mistaken descriptions.” And in Herbert v. Wise, 3 Call, 242, “ To pursue the proper descrip [418] tions of our land boundaries would render men’s titles very precarious, not only from the variations of the compass, but that old surveys were often inaccurate, . . . whereas the marked trees upon the land remain invariable, according to which neighbors hold their distinct lands.” And so it has been held that parol evidence is admissible to prove that the calls for courses and distances in a deed are mistaken, and do not designate the true boundary of the land intended to be conveyed. Elliott v. Horton, 28 Gratt. 766, and cases cited. But these are questions foreign to the present case. Here the grantor contracted to sell, and the grantee to purchase, for the sum of $9,000, a certain parcel of land containing two hundred acres. The boundaries are set forth in the deed, and the tract is described as containing two hundred acres; but so far from the described boundaries being accepted by either party as strictly accurate, it is expressly stipulated in the deed that they “ will be more particularly specified by a survey of the land which is to be made hereaf ter, and a plat of which survey, when made, is to be referred to for a more particular description of the boundaries of the land hereby conveyed.” And it is further stipulated that “ if upon such survey being made, it shall appear that more than two hundred acres are included within the boundaries of the said land hereby conveyed, or intended to be conveyed, according to the true understanding of the parties to these presents, then and in that case it is expressly understood that said parties of the first part shall be entitled to demand and have of the said John Foster for such excess payment at the same rate per acre that he pays for the two hundred acres.” From the terms of the deed thus employed it is manifest that the parties contracted with reference to a quantity of land to contain not less than two hundred acres, and that if more should be contained within the specified boundaries, such excess [419] should be paid for at the same rate at which the two hundred acres were sold. Whether a contract of sale is one of hazard as to quantity—in other words, whether it is a contract for the sale of a certain tract of land, whatever number of acres it may contain, or of a specified quantity—depends upon the intention of the contracting parties, to be gathered from the terms of the contract, and all the facts and circumstances connected with it. And while contracts of hazard in such cases are not invalid, courts of equity do not regard them with favor. The presumption is against them, and can be repelled only by clear and cogent proof. Consequently, a contract will be construed to be a contract by the acre whenever it does not clearly appear that the land was sold by the tract, and not by the acre. And so, where the contract is for the payment of a gross sum for a tract of land, upon an estimate of a given quantity, the presumption is that the quantity influences the price to be paid, and that the agreement is not one of hazard. These propositions have been affirmed by this court in numerous cases. Keyton's Adm'r v. Brawford, 5 Leigh, 39; Blessing's Adm'r v. Beatty, 1 Rob. Rep. 304; Triplett v. Allen and others, 26 Gratt. 721; Watson v. Hoy, &c., 28 Gratt. 698; Yost v. Geisler's Adm'r, 7 Va. L. J. 624. The circuit court rightly held, therefore, that the appellee, Foster, was entitled to compensation for the ascertained deficiency in the supposed quantity of the land conveyed; and as the measure of that compensation was fixed by the agreement of the parties, which was adopted by the court, it follows that there is no error in the decree for which it should be reversed. That decree was a final decree. It settled the rights of the parties, granted the prayer of the bill, and directed payment to be made to the plaintiff of the sum ascertained to be due him out of the collections to be made by the [420] commissioners on account of the sale of the defendant’s real estate. It provided for the payment of the costs of the suit, and left nothing to be adjudicated; nothing further to be done 11 in the cause” to give completely the relief contemplated by the court. It was emphatically a final decree, having all the characteristics of such a decree. Rawlings’ Ex’or v. Rawlings, &c., 75 Va. 76, and cases cited. This being so, it was reviewable on a bill of review, and the remaining question is, Did the circuit court err in refusing leave to the appellant to file its bill of review? We have already disposed of the first ground upon which the decree was asked to be reviewed and set aside—namely, that the court erred in construing the deed from Shultice and wife to Foster. But it was further insisted that the plaintiff, Foster, had no standing in a court of equity, and ought to have been left to his remedy at law. His claim was that a part of the land sold by the commissioners was his, and passed by the deed to him; and if this were so, he was equitably entitled to his proportionate part of the proceeds of the sale, which by agreement between the parties was fixed at a certain sum, and which was rightly ordered to be paid to him. The same relief might have been appropriately sought, and granted, upon petition in the suit of Hicks v. Shultice; but that was no bar to the maintenance of a separate and independent suit. The second ground set forth in the bill of review which was sought to be filed, was to afford the plaintiff therein an opportunity to take the deposition of M. B. Seawell. There was no affidavit accompanying the bill, nor was it alleged that the desired testimony might not have been procured, by the use of due diligence, before the decree complained of was rendered. In such a case the bill must not only set forth the discovery of new matter after the decree, but it must be accompanied by an affidavit that the new matter could not, [421] by tbe use of reasonable diligence, bave been produced or used by tbe party claiming tbe benefit of it before tbe final decree was rendered, and tbe affidavit must also state tbe nature of tbe-new matter, in order tbat tbe court may-exercise its judgment upon its relevancy and materiality. Carter v. Allan and others, 21 Gratt. 241. But apart from these objections, tbe deed to Foster being unambiguous in its terms, could not bave been varied by parol testimony as to any contemporaneous understanding between tbe parties thereto. Upon every ground, therefore, leave to file tbe bill was properly refused. There is no error in tbe decrees complained of, and tbe same are affirmed. Decrees affirmed.