Hines v. Roller
Opinion of the Court
The question before us is whether the District Court erred in dismissing the bill for specific performance on the grounds; First, that the minds of the parties were never in agreement as to the property to be conveyed; and, second, that the conduct of the complainants did not show that diligence and promptness necessary to the relief asked.
In 1895, John E. Roller contracted to convey to O. C. Reed a tract of land containing about 4,000 acres in Webster county, W. Va. There
“If you want to sell all the land owned by John E. Holler on White Oak run, in Webster county, we will give you twenty-one dollars per acre for the same, pay you one-third cash when the survey is made by you and a deed is tendered us with covenants of general warranty, conveying a good marketable title to us, and pay the residue in one, two and three years thereafter, with interest from the date of said deed, execute notes for said deferred payment in equal sums, with interest and payable as aforesaid, and secured by vendor’s lien on the property so conveyed.”
The offer was accepted by Cutlip on October 24, 1913. Thereafter a survey was made under the supervision of Cutlip, and the complainants by courses and distances supposed by both parties to be correct. This survey showed an area of 276 acres. Cutlip prepared a deed of conveyance and sent it to Roller, and notified complainants of his action. The complainants, on November 11, 1913, wrote Cutlip that they would comply as soon as the deed was returned duly executed. Roller, alleging a mistake in the survey, refused to execute the deed, and afterwards had another survey made under his own direction by what he claimed to be the true courses and distances. This survey showed an area of 324.7 acres. He tendered a deed for this acreage at $21 an acre. Plaintiffs refused to accept this deed for excess of acreage, for error in the statement of interest, and for improper acknowledgment. The two last objections were admitted to be valid. Thereupon the complainants brought this action for specific performance, alleging the true acreage to be 276 acres, and averring their readiness and willingness to comply in all respects with their contract. The defendant alleged in his answer that a correct survey of the true boundaries showed an acreage of 324.7, that the minds of the parties never met as to the land to be conveyed, and that the tender of the conveyance and its refusal by the complainants operated as a discharge of his obligation, if any ever existed.
After this suit was commenced the defendant tendered another deed. in proper form for 324.7 acres. The complainants, still contending that the true area was 276 acres, refused to accept the deed, but proposed that it be filed in the cause to abide the decision of the court as to the quantity of land. This offer the defendant declined. Pending the suit, the defendant, Roller, sold the land to A. E. Scott, who bought with notice, and was afterwards made a party defendant. By amended and supplemental bill the complainants set up that if they were mistaken as to the number of acres “owned by Roller on White Oak run,” they were entitled, under the contract, to all the land falling under that description. The answer to the supplemental bill set up die same defenses as the original answer.
“A party does not forfeit Ms rights to tile interposition of a court of equity to enforce a specific performance of a contract, if he seasonably and in good faith offers to comply, and continues ready to comply, with its stipulations on his part, although he may err in estimating the extent of his obligation.” Willard v. Tayloe, 8 Wall. 557, 19 L. Ed. 501; Tavenner v. Barrett, 21 W. Va. 657; Vaught v. Cain, 31 W. Va. 426, 7 S. E. 9; Armstrong v. Maryland Coal Co., 67 W. Va. 589, 69 S. E. 195.
The principle is clearly stated and illustrated by Judge Brannon in Watson v. Coast, 35 W. Va. 463, 14 S. E. 249, and by Vice Chancellor, now Justice, Pitney, in Worch v. Woodruff, 61 N. J. Eq. 78, 47 Atl. 725.
The evidence shows good ground for the difference between the vendor and vendee as to the boundaries and area of the land, and therefore as to the amount of the purchase money. There is no ground to impute bad faith to either. The weight of evidence, how
The decree of the District Court must be reversed, with instructions to enter a decree requiring the defendant Roller' to convey the track of land shown by his survey as 324.7 acres upon payment by the complainants of $6,818.70, being $21 an acre, the agreed price.
Since the defendants’ contention as to the acreage was correct, the costs in the District Court should be paid by the complainants.
Reversed.
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Reference
- Full Case Name
- HINES v. ROLLER
- Status
- Published