Hoard v. Railroad Co.

BRANNON, PRESIDENT: S. Floyd Hoard and Pitt Hoard sold to the Huntington & Big Sandy Railroad Company land for right of way for the railroad through the town of Geredo bjr the following contract: “To the Huntington & Big Sandy Kailroad Company: We sell you right of way for your road through our property in Ceredo — for the sum of ten thousand dollars — to be paid one-third cash when deed is made, and the residue in one or. two years thereafter, with interest on deferred payments, reserving vendor’s lien in said deed to secure deferred payments. The lands herein proposed to be sold and conveyed have heretofore been agreed upon by the parties hereto, and as soon as the proper description of said property can be had we will incorporate said description, by metes and bounds, in a deed of general warranty and convey the same to you— * * * We, together with your engineer, to prepare said descriptions at the earliest practicable convenience. You can at once begin the construction of your road over said property as aforesaid, pending the preparation of said descriptions as aforesaid. Pitt and S. Floyd Hoard. This proposition is accepted. Huntington & Big Sandy Railroad Co. By Z. T. Vinson, President.” This contract bears no date, but was -in March, 1892. The railroad company at once took actual possession and built its road on the land, and has ever since occupied it with its road. The contract says that the engineers of the company and the Ploards should prepare a description of the land for incorporation in the deed from the Hoards to the company. Sometime after this contract was made an engineer on the part of the railroad company did furnish to said Hoards a map giving description to go into the deed; but the Hoards refused to agree to it. By some arrangement the control of the Huntington & Big Sandy Kailroad Co. passed to the Ohio River Kailroad Co., and then to the Baltimore & Ohio Railroad Co. However, this seems immaterial. The matter rested in unsettled condition until 28th July, 1902, when the Hoards brought a suit in chancery in the circuit court of Wayne county against the said three railroad companies, to enforce the specific performance of said contract of sale, to recover — 93 — the purchase money, and to sell the said land for its payment. November 15, 1901, the Hoards prepared a form or blank deed and tendered it by mail to the Ohio River Railroad Co. Whether the Huntington & Big Sandy acted on it we do not know; but we will say that it was not accepted by that company. No response to the tender was made to the Hoards. With the bill there was tendered a deed by the Hoards to the Huntington & Big Sandy Railroad Co. for the land. The Huntington & Big Sandy Co., and also the other companies, filed answers objecting to the deed tendered with the bill on the ground that as to one of the tracts it conveyed with only special warranty, whereas the said contract demanded general warranty; and objected to being compelled to accept the proposed deed because of its want of description of the seven parcels of land specified in it sufficiently certain and definite for the identification of the land. The court entered a decree enforcing the contract against the Huntington & Big Sandy Railroad Co., giving a decree for the purchase money, $10,000, with interest from November 15, 1901, the date when the Hoards sent the deed to the Ohio River Railroad Co. From this decree the Huntington & Big Sandy Railroad Co. appeals. Much law is cited to show that before equity will enforce performance of a contract that contract must be definite and certain, not only in its terms, but the contract must be certain, in a legal point of view, as to the property conveyed. Ensminger v. Peterson, 53 W. Va. 324. This is sound law; but the question before us is whether the deed tendered is certain. We are not inquiring whether the contract is sufficiently definite. No point is made as to that. But the question which we have to deal with is, whether the deed which the court forced upon the railroad company contains that definite description to which the purchaser is entitled. If there is any difference between the contract up for enforcement, and a deed of conveyance, in respect to certainty of description, the deed requires the fuller and better description. I think there is such difference. I think that the grantee has a right to a description fuller, more precise and definite, than is required in a preliminary contract. I will — 94 — add- that this right-of-way land runs through a growing town, and along and near the Chesapeake & Ohio railroad, and near a trolley line. Under this situation, that is to last for all time, I think the railroad company is quite reasonable in demanding clearness and accuracy in its deed, because conflict between the town as to the streets, or between the railroad companies as to true location of rights of way, may readily arise. ' A railroad company having tracks running through a town, near to other railroads, has a need, greater than in ordinary cases, for accurate boundary of its right of way — different from farms. Here are no boundary trees, the whole surface of the ground occupied for this, that and the other .use. The railroad is to exist forever. The men who laid it out will soon pass away. And in a few years they forget place. The evidence to show location existing at the date of the location will in a few years pass away. Then what are the parties interested either way to do? The muniment of title should be so definite that the right of way can be identified fifty or a hundred years hence. In all cases, but especially in this, there should be certainty. “The description of the premises conveyed must be sufficiently definite and certain to enable the land to be identified; otherwise it will be void for uncertainty. ” 2 Devlin on Deeds, section 1010. “The description should contain all the particulars necessary to clearly and accurately identify the property, such as its situation in the town and county, its boundaries, etc.” 1 Jones on Conveyancing, section 320. A very essential thing in a description is the initial point, the beginning. In the deed which the decree compels the defendant to accept we find as to Tract No. I the following description: “BEGINNING at a point in the west line of First street west of Main street, the center of which street is located by two stone monuments with brass or copper wire set in same, one of said monuments being in the intersection of the center lines of said First street west of Main and B streets, the other being in the center of said First street west of Main street and distant about 2184 feet southerly of the one above mentioned in center of First street west of Main street and B street, both monuments recently located by Chas. Silliman, C. E., and the first parties hereto. Said beginning point is distant thirty feet northerly from said center line of railroad, — 95 — measured at right angles from said center line; thence westerly and parallel to, and thirty feet distant from said center line of railroad,” etc. The grave question at once arises, Where is the beginning of Tract No. 7 ? It is on the west line of First street. At what point on that line? If the deed had located that point-at a certain distance from those stone monuments, it would have been sufficient. We must not take the words “about 2184 feet” as descriptive of the beginning point of the right of way on the line of First street, because that is the distance between the two stone monuments. There is no point of beginning designated on the west line of First street; no guide to it. The description says, ‘ ‘said beginning point is distant thirty feet northerly from said center line of railroad”; but where is the center line? It does not mean the center line between the railroad rails; for the right of way extends thirty feet out from the center line each side. Now, the center line, like a tree or a rock, must have a point of location, so that it can be found to start from. This center line has no location. One place will suit it as well as another. One place on the west line of First street will suit for that beginning corner as well as another. There is no certainty here, no means to definitely locate either the beginning point or the center line. If a stone had been planted under the surface, for instance, we could appeal to it in years to come; but we have not that recourse. A civil engineer swears that he cannot locate the right of way of the company under this deed. It seems to us uncertain. The description of Tract No. 6 seems to be infected with the same uncertainty, if not other tracts. A plat referred to in the deed does not remove the objection. Besides, several stations, one the beginning of Tract No. 2, are left blank as to number in the deed. I am aware that Jones on Conveyancing, section 323, says that “The office of a description is not to identify the land, but to furnish the means of identification,” and that it is only when it remains “a matter of conjecture what property is intended to be conveyed, after resorting to such extrinsic evidence as is admissible, that the deed will be held void for uncertainty in the description of parcels. If the description is sufficient to allow of identification by actual survey, it will be upheld, however indefinite it may seem to be. But if the — 96 — description is so vague that the parcel cannot ■ be located under it, it is void for uncertainty. If the starting point of a boundary line cannot be identified, the deed is necessarily void. ” This Court has said that where a deed or other instrument contains enough to enable identification by applicable extrinsic evidence it will do. Thorn v. Pharris, 35 W. Va. 771; Simpkins v. White, 43 Id. 125; Warren v. Syme, 7 Id. 474. The description, however, must be such in the deed as is susceptible of being made definite by evidence outside of it. 88 Am. St. R. 710. The deed must refer to something of such certainty as will enable identification. Westfall v. Cottrill, 24 W. Va. 763. Now, there is nothing in this deed that will allow the application of oral evidence. What evidence will show the iilace of that beginning on First street that will answer for all time to come? So as to the center line. In the deed it is said that the land is “supposed to bind upon and follow the northerly line of the adjoining right of way now occupied by the Chesapeake and Ohio Railroad Company”; but there is no instrument or showing in the record of the definite location of the right of way of that company. The answer of the Huntington and Big Sandy Railroad Co. asks the court to make a survey of the land sold to it by the Hoards. As the parties to the contract had never fixed the description under the contract — as the contract contemplates a description satisfactory to both parties, and they had not agreed upon a description, this request for a judicial ascertainment of such boundary was reasonable and should have been granted. An order of survey would have given certainty. We think there was error in enforcing that deed upon the company. The railroad company complains that the court compelled it to pay interest from November 15, 1901, the date when the Hoards mailed the blank deed to the Ohio River Railroad Company. The claim of the appellant is that by the contract the first payment was not to be made until delivery of a proper deed, and a proper deed has never been delivered. The court properly held that the deed filed with the bill was a non-compliance with the contract, in that it contained a special warranty as to one of the tracts. This defect, as also uncertainty of description, constitutes the argument by the appellant against the allowance of interest — 97 — from said date. On the other hand, the plaintiff filed a cross-assignment of error, claiming that the court gaye them too little interest; that it should have given them interest from the date of the contract, March 9, 1892, because the Huntington and Big Sandy Railroad Co. then took possession. Under the authorities we must say that the company is liable from the date when it took possession under the contract, the date of the contract, because that contract gave the company immediate possession. Reflect that the company had the use of this land and also the use of the money. It never set apart the money to the use of the Hoards. It never notified them that it was ready to pay. Money is worth its interest. The clause in the contract saying that the first payment should be made on delivery of the deed was intended only to fix the date of the first payment, and had not intent actual as to interest. I know that it is a general rule that a debt does not bear interest until maturity, in the absence- of express provision otherwise; but there is a peculiar rule applicable in this case, and that is, that the vendee cannot keep both land and purchase money without paying interest. If the vendee desires to escape interest on the purchase money, even when the delay in payment is caused by default of the vendor, he must actually set aside the money for the vendor, and he must not himself take its benefit, and must notify the vendor of these facts, and that the money is lying idle. Steinrod v. Railroad, 27 W. Va. 1. Say that the plaintiffs were negligent or blameful in not making a deed soon. That would not excuse the appellant from interest, because it had the use of both money and land. It did not deposit the money to the credit of the vendor in a bank, or in any way set it aside, but used it. It did not offer to pay. It did not request a deed. When the deed form which the Hoards proposed to make was sent to the Ohio River Co., the lessee of the road, whose vice president and manager was also president of the Huntington and Big Sandy Co., the deed was retained; no objection made, no response was made. The Hoards wrote to the Ohio River and Baltimore and Ohio companies, tried to settle the matter. So the evidence shows, and so is the probability, as we presume they wanted the large debt. When the description sent by the engineer was not accepted and the Hoards requested a change, it was the — 98 — duty of the companies to confer with Hoards and settle description, because the contract made it equally the duty of both sides “to prepare said description at the earliest practicable convenience.” There is no evidence that the companies offered to pay and demanded a deed, or made effort to settle description. It was just as much the duty of the railroad company to furnish proper boundaries, and to confer with the Hoards as it was incumbent upon the Hoards to do the like. Under many decisions in the Virginias, as I think elsewhere generally, the company must pay interest from the time of the contract. Brockenborough v. Blythe, 3 Leigh 619; Oliver v. Hallam, 1 Grat. 298; Bailey v. James, 11 Grat. 468. The company had as full enjoyment of the land as if a deed had been made, and must pay interest. Therefore, we reverse the decree and remand the case to the circuit court with directions to cause a survey to be made, or in some way to fix proper and sufficient description of the said land, and to enforce a specific performance of the contract after providing for a proper deed from the Hoards to the appellant company, containing proper description.