Goins v. Garber
Goins v. Garber
Opinion of the Court
delivered the opinion of the court.
A sufficient preliminary statement of the case is this: On the 18th of December, 1907, Elkanah Garber executed ■a title bond to J. H. Goins whereby he bound himself to convey to Goins on or before the 17th of December, 1908, a tract of land containing 107 acres. By the terms named in the bond, the sale was made by the boundary and not by the acre, and the purchase price was $300.00 paid and to
Goins entered at once into possession of the land, and (with the exception of two small portions known as the Rhoda Lawson land and the Null Wallen land hereinafter mentioned, has remained in possession ever since, but he made no further payments on the purchase price.
In July, 1916, Garber filed his bill to specifically enforce the contract. He had not, theretofore, tendered Goins a deed, but alleged that-he had not done so because no further payments had been made on the price, and he offered and filed a deed with his bill. Goins answered, setting up several minor defenses, but relying principally upon the allegation that Garber did not have a good title to the land. He did not ask for a rescission of the contract, but merely that Garber be required to perfect his title before any decree should be rendered to enforce the payment of the purchase money. There was an amended bill and an answer thereto, both of which will be more particularly mentioned later.
The cause was referred to George P. Cridlin, one of the commissioners of the court, to report on the state of the title, and he returned first a preliminary and later a final and very full and complete report. Upon the coming in of the latter, the court entered a decree confirming the same, disposing of all the questions in. the case, and directing a sale of the land, unless within thirty days thereafter Goins should pay the balance of the purchase money and the costs of the suit. From that decree, this appeal was taken.
The answer to the original bill, after a general denial of title in the complainant, undertook to point out certain particular defects therein. When the cause came on to be heard the first time on the original bill, the answer thereto and certain depositions, the court deemed it necessary and accordingly directed that the complainant should amend his bill to bring in new parties in whom it appeared that the legal title to the land, or some part thereof, might be outstanding. This action of the court was in direct furtherance of the course suggested by the defendant’s answer, and was eminently proper. In plain compliance with this
The amended bill was filed on the 28th of September, 1916. At the September term, 1920, after all the evidence had been taken, the final report of Commissioner Cridlin filed, and the cause fully prepared for hearing, the defendant tendered and was allowed to file what he termed an answer to the amended bill. This paper was prepared and offered by counsel who had recently come into the case in place of the attorney originally employed, whose business had called him permanently to another jurisdiction. It was ■an amplification of the first answer, but it was not necessary. There was no matter of defense therein which was not in general terms embraced in the first answer and in the issue theretofore made up and referred to the commissioner. Under these circumstances there was no error in rejécting the answer, which in effect was done by sustaining the exceptions thereto. Applications to amend answers rest in every case in the sound discretion of the court. 1 Bart. Chy. Pr., p. 445. In our opinion, there was no abuse of discretion in this instance.
3. The third assignment of error is as follows: “The circuit court erred in directing Geo. P. Cridlin, commissioner, to report upon any other matter than the state of the title to the land in controversy, and particularly in directing the said commissioner to summon before him any person, or persons, whom he should deem necessary parties to the cause.”
It is conceded that the reference to a commissioner for
When the appeal was granted in this case we were disposed to think that this assignment raised a very interesting question of practice, namely: the question as to the binding effect of a decree in á case of this sort where an interested party not named in the pleadings,- and who does not at any time.voluntarily appear, is brought into the case and his rights adjudicated upon no other process than a notice given by a commissioner acting in pursuance of a general direction of the court to convene any necessary parties not theretofore named as such in the proceeding. Upon more mature consideration of the very voluminous record, however, we find that the question is not material here, and that it is entirely moot, so far as the decree complained of is concerned.
5. The fifth assignment of error is that the court erred in holding that Elkanah Garber had such title to the land in controversy as he contracted to convey, and therefore erred in decreeing specific performance.
The finding and adjudication of the court upon this point as expressed in its decree was as follows:
“That while the complainant, a,t the time he contracted said land to the defendant, J. H. Goins, had no legal title thereto, and has not since that time acquired such legal title, yet his claim thereto by reason of the turning over to him by A. B. Smith and Wm. Goins of the title bond executed to them therefor by John M. Tate, coupled with his possession thereof to the date of said contract and the possession of the defendant since the date of the said contract, constitutes such title as he contracted to convey, namely: ‘a good and sufficient deed, with covenants of general warranty and free from encumbrances,’ and this notwithstanding the fact that the said John M. Tate, who executed the said title bond to the said A. B. Smith and Wm. Goins, never had 'any legal title to the said land.”
6. Error is assigned on the ground that the court over
There is nothing in the record to show that Null Wallen had any valid claim to this less than one acre of land in controversy. He does not appear to have been a party to
Whether this action bound Wallen or not, it is evident that the assignment must be regarded as frivolous and de minimis. Wallen’s claim and possession began after the land had been sold to and had been taken possession of by the defendant. The latter is not asking for rescission, and even if it were conceded (instead of being otherwise reported by a very accurate and careful commissioner) that Wallen had title to the small piece of land claimed by him, the only possible relief which the defendant could claim would be an insignificant abatement of the purchase money.
8. The eighth assignment is that the court erred in rendering judgment against the petitioner in favor of the complainant for costs.
The decree complained of is affirmed.
Affirmed.
Reference
- Full Case Name
- J. H. Goins v. Elkanah Garber
- Cited By
- 4 cases
- Status
- Published
- Syllabus
- 1. Costs—Non-Residents—Additional Security for Costs—Section 3539, Code of 1904.—The lower court having complied with the mandatory provisions of the Code of 1904, section 3539, in requiring complainant, a non-resident, to give security for costs, was only bound to exercise reasonable discretion in regard to any subsequent motion for increase of the security, and where such a motion was not passed upon until after the court had decided the merits of the case adversely to the defendant, its refusal by the same decree which disposed of all the other questions to order additional security was reasonable and natural. 2. Answers—Ansiver to Amended Bill—Rejection of Answer.—Defendant’s answer to complainant’s amended bill was an amplification of his first answer. There was no matter of defense therein which was not in general terms embraced in the first answer and in the issue previously made up and referred to a commissioner. Held: That under these circumstances there was no error in rejecting the answer, which in effect was done by sustaining the exceptions thereto. 3. Answers—Amendment—Discretion of Court.—Applications to amend answers rest in every case in the sound discretion of the court. 4. Service op Process—Publication—“Unknown Heirs”—Section 3230, Code of 1904.—In a suit for specific performance, a number of persons referred to in the bill as “unknown heirs” were made parties to the proceeding by this general classification and an order of publication was made and published against them as such. No objection was made to the sufficiency of the bill or publication in this respect. Held: That Code of 1904, section 3230, Code of 1919, sec. 6069, expressly authorized this course. 5. Service op Process—Publication—“Unknown Heirs”—Section 3230, Code of 1904.—Section 3230, Code of 1904, Code 1919, sec. 6180, does not limit the class of cases in which a court of equity may direct that notice be given for hearings before its commissioners. 6. Appeal and Error—Prejudicial Error—Assignment of Error— Case at Bar.—It is incumbent upon an appellant not only to show error in the proceeding complained of, but to show also that the error was prejudicial. Thus, in the instant case, whether there were some persons included in the service by publication on the “unknown heirs” or personally served who were not in any way made parties to the bill and did not appear, and if so, how far they were bound by the commissioner’s report and the decree confirming the same, were questions which it was not necessary to decide, as no such person was pointed out in the assignment of error, and no harmful error on account of any such fact was specified. 7. Infants—.Guardian Ad Litem—Parties to Suit.—The preliminary report of a commissioner showed that several interested persons were infants, and the court appointed a guardian ad litem who' filed his answer in that capacity, and also an answer for the infants by himself as guardian. It was alleged that this was error because the infants had not been made parties to the suit. Held: That this position was not tenable, as the infants were among the “unknown heirs” named as defendants in the amended bill in the suit and served by publication, and the action of the court was, therefore, entirely regular and proper. 8. Specific Performance—Vendor’s Title Acquired by Adverse Possession.—Where in a suit by the vendor for specific performance of the contract of sale, the evidence warranted the court in finding that complainant had acquired a good title by adverse possession, such title is as free from valid objections by defendant as if it had been acquired by a deed from a former true owner, or by a grant from the Commonwealth. 9. Bills, Notes and Checks—Interest- after Maturity—Purchase Money Notes.—A title bond provided for five notes, each “to become due in one, two, three, four and five years, the first three of said notes without interest, and the other two and last of said notes to bear interest from date.” Held: That after maturity, the first three notes as well as the last two bore interest. 10. Interest after Maturity.—After maturity, unless some peculiar circumstances govern, interest follows the principal “as the shadow follows the substance.” 11. Vendor and Purchaser—-Interest Upon Purchase Money—Vendee in Possession.—Where there were no serious defects in vendor’s title and vendee had been in possession of the land ever since the title bond was given, it is clearly right to charge vendee with interest. 12. Specific Performance—Writ of Possession Against Person not Party to the Suit—Frivolous Assignment of Error.—A decree in favor of vendor, complainant in a suit for specific performance awarded á writ of possession against a third party for less than one acre of the land in controversy. There was nothing in the record to show that the third party had any valid claim to this land. He did not appear to have been a party to the bill, but was served with notice by the commissioner and the commissioner reported that “He did not appear and would not appear.” This action of the court was assigned as error. Held: That whether the action hound the third party or not, the assignment was frivolous and de. minimis, as the only possible relief that defendant could claim would be an insignificant abatement of the purchase money. 13. Costs—Discretion of Court—Affirmance of Decree by Supreme Court of Appeals.—The question of costs was one resting in the discretion of the lower court, and in the instant case there was no evidence of an abuse of that discretion. When the Supreme Court of Appeals affirms a decree in all other respects, it will not interfere with the decision in respect to the costs of the cause unless th'ere is palpable error in that particular.