Boggs v. Bodkin

GREEN, Judge :

The prayer of the original bill in this cause was “ that the defendants George Bodkin and N. G. M undy may be compelled to elect within a short day given for the purpose *576 either to have said contract rescinded, and the deed for the 786 acres decreed void, or specifically performed on their part by the payment of $-, the unpaid purchase-money, and the conveyance.to the plaintiff of the 725 acres of land; and for general relief.” The evidence shows, that eleven years before this in 1876 the plaintiff finding, that he could not make good his warranty of title for the 786 acres of land contained in his deed to said Bodkin and Mundy, and that they having been sued by one Merchant for the tract of land, which they had been put in possession of, would lose the same, proposed to rescind this contract of exchange for the 786 acre tract for said tract of 725 acres, and that the proposition' was accepted by the defendants the said Bodkin and Mundy, and completely consummated by them, they on the plaintiff's advice abandoning all defence of the ejectment-suit brought to recover this 786 acres of land of them, and Andrew Boggs, Jr., the father of the plaintiff, abandoning his possession of the 725 acre tract. So that in point of fact the parties to this contract bad so far back as 1870 mutually agreed, that what was aked by the plaintiff’s original bill was right and proper. This being the case, it is difficult to see how the court could do otherwise than rescind the contract for the exchange of these two tracts of land.

It was agreed in 1870, that this should be done, because the father of the plaintiff, Andrew Boggs, Jr., did not, as he then admitted, have a good title to the 786 acre tract. But, if proper then, it was much more proper and necessary in 1881, when this suit was instituted, as it was proven in the case, that the defendants, Bodkin and Mundy, did not then have a pretence of title to the 725 acre tract. They never did have any title; but they did have, when this contract of exchange was made, a right to demand a conveyance of this land upon their paying the purchase-money to Holt, of whom they bought it. But this right to demand a conveyance of this land was lost, by them in 1870, they having rescinded their contract for the purchase of this land,, given up the possession of it to Holt, and annulled the contract of sale, and Holt, the vendor, having surrendered to them their purchase-money-bonds andpaid them for their improvements on the land. It would therefore obviously have been im *577 proper for the Circuit Court in this cause to specifically enforce this contract, as neither party had title to the tract of land, which they undertook to exchange. It was of course proper, if the contract was to be rescinded, to restore each party to the situation he was in, when the contract was entered into. The defendants, said Bodkin and Mundy, were thus restored to the situation, in which they were, when the parties had themselves agreed on a rescission of the contract in 1870 ; that is to say, Andrew Boggs had surrendered to them the possession of the 725 acre tract, which they had put in his possession. To restore the other side to the posi-, tion, in which they were, before this contract was made, it was necessary not only to require Bodkin and Mundy to surrender to the plaintiff, as the representative of Andrew Boggs, Jr., the 786 acre tract, the possession of which was obtained from said Boggs, but it was also necessary to set aside and annul the deed from said Andrew Boggs to them, dated September 6, 1865; and this was properly done by the decree appealed from,'rendered May 3, 1887.

The counsel for the appellants insist, that this agreement made 1870 by said Andrew Boggs, Jr., and said Bodkin and Mundy to cancel this contract for the exchange of lands being but an executory parol agreement was a mere nullity, as the agreement to exchange these lands being in writing could only be set aside by an agreement in writing signed by the grantees. But the agreement in 1870 was not simply an executory agreement in writing signed by the grantees, it was executed by said Andrew Boggs, Jr., by his surrender to Bodkin and Mundy of the possession of their 725 acres of land, and they disposed of it by restoring it to Holt, from whom they had agreed to purchase it, taking back their purchase-money-bonds and cancelling and sur-rending the contract, whereby they became the purchasers of this land from Holt. After this, said Bodkin and Mundy could not equitably refuse to surrender to said Andrew Boggs, Jr., his 786 acres got from him in exchange for this 725 acres, and to cancel the contract for the exchange of these lands, even were the position of the appellants’ counsel —that a mere executory parol contract would be insufficient to cancel a written contract for the exchange of land — tenable.

*578 Bat the Court would have to set aside this contract of exchange, even though the partnership had not made a valid agreement to do so in 1870; for the parties to this contract for the exchange of lands and their representatives are unable to specifically execute the same. Said Andrew Boggs, Jr., and representatives have not and never did have such good title to the-786'acres of land, that a court of equity would be justified in holding, that their deed to said Bodkin and Mundy conveyed to them such'title to his 786 acres of laud, as would compel them to receive in compliance with his obligation to give this tract of land and a clear and valid title thereto. The appellants admit, that on the face of the deeds the title of said Andrew Boggs, Jr., was not good. He traced his title back to a patent July 1,1856, by the State. But it appears in proof, that one Daniel Stringer had a patent issued to him by the State on September 8, 1824, for a 2,000 acre tract, which covered the whole of this 786 acres as entered, surveyed and patented íó David Alkire more than thirty years afterwards.

It is claimed however, that David Alkire and those claiming under him acquired a valid title to this 786 acres of land by the fact, that they held in adversary possession against Daniel Stringer and those claiming under him for more than ten years prior to September 6, 1865, when this tract of land was conveyed by said Andrew Boggs and wife to said George Bodkin and Nimrod G. Mundy in accordance with said contract for the exchange of this land for the 725 acre' tract. To constitute adversary possession, such as will bar the legal owner, five elements must exits. It must be (1) hostile; (2) actual; (3) visible, notorious and exclusive ; (4) continuous; (5) under claim of' title. See Core v. Faupel, 24 W. Va. 238 , point 1 of syllabus.

The appellants’ counsel insist, that neither David Alkire nor any one claiming under him ever held adverse or hostile possession of the 786 acres of land as against Daniel Stringer or those claiming under him. Stringer obtained a patent for 2,000 acres of land covering that located and surveyed by David Alkire some thirty years afterwards. It is true, that as early as 1834 David Alkire settled on this land and actually built a house thereon and cleared up and inclosed a *579 few acres of ground. The simple proving, that a party was in actual possession of a tract of land, is not sufficient; for the burden of proving, that the possession was adverse and hostile and not under the legal owner of the land, is on the person, who asserts, that such possession was adverse. See Jones v. Porter, 2 Pen. & W. 132 . There is proof, that David Alkire took possession, as before stated, by enclosing a few acres of land in 1834. There was then, so fár as the record shows, no claimant of this 786 acres of land or any part of it except Daniel Stringer, who had had a patent for a tract of land covering it for some ten years.

The appellants insist, .that the presumption .of fact is, that David Alkire entered on this land under the title of Daniel Stringer, and that this presumption is much strengthened by the fact, that the record shows no other claim of title to this land till July 22, 1854, when he entered this 786 acres of laud as vacant laud. In the meantime he had abandoned or surrendered the possession of this land for many years; for in 1843 Samuel Merchant, who • claimed the land under the patent of Daniel Stringer, leased this land to Andrew Boggs, Sr., for three years from April 1, 1843, and put said lessee in the possession of said land, it being then unoccupied by any one. Before this lease expired Andrew Boggs, Jr., the plaintiff's father, the son of the lessee Andrew Boggs, Sr., married, and thereupon ho moved into said house on this 786 acre tract, and he occupied it for some three years under his father, who was holding it under the Stringer title as tenant, when he gave it up. The agent of Samuel Merchant leased the lower part of this survey to Thomas Boby, who with his son as tenant under those claiming under the Stringer survey occupied a portion of this 2,000 acre tract by living upon it and cultivating a portion of it from 1854 till 1863.

It is insisted by the counsel for the appellee, that the possession of David Alkire and those claiming under him was not exclusive during these nine years, and also that it was not continuous, as the law requires. David Alkire obtained his patent for this 786 acres of land in July 1, 1856. He had it entered on July 22, 1854, and made a deed of it to said Andrew Boggs, Jr., on December 5, 1854, which was *580 not recorded till December 10, 1866. Yet in 1860 said Andrew Boggs took a lease of the whole 2,000 acre tract including this 786 acres, which had been patented to David Alkire from Samuel Merchant, claiming under the Stringer title; and if he had any adverse possession under the Alkire title, which commenced in 1854, this hostile possession was broken up by his claim as lessee under the Stringer title in i860 and afterwards.

There is certainly much force in these views of counsel of George Bodkin and N. G. Mundy. They at least show, that the title of Andrew Boggs, Jr., to this 786 acres of land was very far from being clearly good ; and when it is remembered, that in 1870 Andrew Boggs, Jr., had an opportunity of establishing his title to this land, if he had good title, in the action of ejectment brought against his vendees, said Bodkin and Mundy, by said Merchant claiming under this Stringer title, and that he did not avail himself of this opportunity but then admitted the superiority of the Stringer title and advised his said vendees not to defend said suit but either to surrender the land to the claimant' under this Stringer title or compromise the suit on the best terms they could make, it would not be right for a court of equity to compel the defendants, George Bodkin and N. G. Mundy, to accept as a fulfilment of their part of the contract to convey this 786 acres with a good title to them this deed from him to them. This title, if not actually worthless, was at least so regarded by himself, and they ought not to be compelled to run the risk of losing this 786 acre tract, when it appeal’s, that said Andrew Boggs, who ought to know the character of his title, obviously regarded this risk as so great, that he thought, the loss of it by them almost a certainty.

But there is still another reason, not noticed in the argument of this cause, which would of itself require the abandonment of this contract for exchange of lands of September 6, 1865; i. e., the entire failure of the record to show, what were the terms of the contract. The bill alleges, that the defendants George Bodkin and N. G. Mundy were by said agreement in exchange for said 786 acres not only to convey the said 725 acres but also to pay the said Andrew Boggs $-. They neither conveyed said 725 acres of laud to him *581 nor paid liim said money. That these were the terms of this contract, is denied by the answers of these defendants, which were replied to generally ; and there is an entire failure of proof as to the terms of this contract or exchange. There is proof, that an exchange of these two tracts was agreed upon, but no one proves, whether there was to be any boot paid in the exchange by either party. The contract was reduced to writing, and this writing was in the possession of Jonathan M. Bennett, when this suit was instituted. He refused however to produce this written contract, though required so to do by the court; and in one of the later amended bills it is alleged by the plaintiff to have been lost. It never was produced, nor has its contents ever been proven. This of course would effectually prevent the Court from specifically enforcing this contract.

There wore certain orders made during the progress of this cause, which have not been noticed. The first of these made August 29, 1884, granted the defendant George Bodkin for reasons set forth in the affidavit of his counsel leave to re-take the depositions of G. I). Camden upon giving notice to the plaintiff of the time and place of such examination. It will suffice to say in reference to this, that it is unnecessary to consider the merits of this order, as it was made at the instance of the appellants in the cause, and they can not therefore complain.

The reading of the deposition was excepted to by the plaintiff, and two exceptions indorsed on the back thereof. One of those exceptions was that “the notary continued the taking of depositions without commencing the examination of a witness and wdthout notice or presence of the plaintiff first from December 11, 1883, until December 20, 1883, and from December 20, 1883, until December 25, 1883, and the plaintiff would have been subjected to unlawful expense and trouble to have attended on all of said days.” This exception was overruled by an order made September 8, 1885; and portions of these depositions were read by the court at the final hearing of the cause. It appears, that, when these several continuances were made, a formal order was made by the notary stating, that no witness had appeared, and the “taking of these depositions is continued to the specific day, *582 at the same place, and between the same hours.” This memorandum was dated and signed by the' notary public, officially. The taking of these depositions was perfectly regular, and this exception to them was properly overruled by the court.

The plaintiff, by the manner in which these depositions were taken, was not compelled to attend at the place named for taking them five different times, as the exception seems to assume. In point.of fact, he did not attend a single time; and, if he had attended when first notified, he could have asked, that the witness who did not attend, be summoned to attend by subpoena issued by the notary at the time fixed at the first continuance; and the presumption is, that the witness would have done so., and his deposition would have been taken at the second continuance instead of the fifth. The plaintiff had no right to object to this deposition being taken on the 28th. He utterly neglected 'to pay any attention to the notice he received to take this, deposition, and he can properly attribute his absence, when the deposition was taken, to his own neglect, and not to the action of the notary in regularly continuing the taking of depositions from time to time.

The plaintiff also excepted to so much of the deposition of H. G. Mundy taken then as detailed any conversation or declaration made by Andrew’’ Boggs, Jr., deceased, to him; and a like exception was taken to the deposition of John P. Bodkin, taken on November 28,1885, andDecember 3,1885. The court sustained these exceptions and ordered, that so much of these depositions as gives any personal transactions or communications between the witnesses as respective parties to this suit and Andrew Boggs, Jr., be suppressed. This suppression of this portion of these depositions wras obviously right,

These orders should have designated the answmrs to specified questions which were thus suppressed; but the plaintiff can not complain in this Court that the answers were not so designated as the record does not show7, that he asked the court below7 to be thus specific in making these orders; and it does not appear from the whole record, that he w7as injured by. the manner, in which these orders w7ere made, for it does *583 not appear, that the court be]ow at the hearing of this cause read or considered any of the answers of these witnesses, which ought to have been suppressed as incompetent evidence; and, omitting all such evidence, there was ample testimony in the cause to justify the court below in reaching the conclusion which it did.

One of the errors assigned in the petition for the appeal of George Bodkin and N. G. Mundy and John P. Bodkin is, that the court erred in sustaining the exception of the plaintiff to the deposition of G. D. Camden, taken on the 19th of October, 1883, and filed in the cause. There is nothing, of which they can complain alleged in this ground of error; for on motion of the said defendants, Bodkin and Mundy, on August 25, 1884, they were given leave to re-take the deposition of Gideon D. Camden, and on August 23, 1886, they did re-take his deposition, and it was again taken on August 12, 1887. These depositions were read by the court, and the appellants could have sustained no injury from the first deposition of G. I). Camden not having been read by the court, as the depositions, which were read, contain all and more than what was contained in his first deposition. The appellant must show, not only that such orders made pending the cause was erroneous, but that he sustained injury thereby.

The depositions of Washington Boggs and V. M. Roby taken before Lewis Kelly, as notary public, on November 21, 1884, were improperly suppressed by an order made December 3, 1885, on exception of plaintiff to the reading of them. These depositions should have been read by the court; and in stating and deciding this case I have considered them as in the cause. They rather.strengthen the position of the appellees and, it seems to me, were not very prejudicial to the plaintiff but really strengthened his case though the depositions were taken by the defendants.

The court by its order on December 2, 1886, sustained the exception of the plaintiff to the reading of an attested copy to the deed of trust from Daniel Stringer to Camden and Porter, trustees, filed with the defendants’ answer, in tracing the title of Merchant to Daniel Stringer’s patent, and in order to show that Andrew Boggs, Jr., did not have a good title to *584 the 786 acre tract claimed under a patent subsequent in date to Stringer’s. This deed of trust is signed “D. Stringer,” and was recorded on its acknowledgment by D. Stringer before the clerk of the County Court of Lewis, who was I). Stringer. This acknowledgment was, as held by the court below, fatally defective, if the Daniel Stringer, who executed the deed, was the same person as D. Stringer, the clerk, as a person can not acknowledge a deed before himself. There is no proof on the question, that arises, whether they were the same person, though it is very obvious it could have been proved by G. D. Camden, whether they were or not. It seems to me, that in the absence of all proof on this point the presumption on the face of the deed is, that they were the same person; for it appears, that the grantor was a resident of Lewis county, and that he signed his name “D. Stringer,” just as the clerk signs his name. If so, the court did not err in excluding this copy of this deed as evidence. This however does not materially alter the case as presented to the court. In my statement and consideration of the case I have regarded Merchant’s title as properly traced back and connected with D. Stringer’s patent; that is, I have regarded the existence of this deed of trust as established, It is really immaterial, whether the valid title to this tract of land was in Merchant or D. Stringer, except as it might affect the question of adversary title claimed 'by David Alkire under his patent in 1856, and it could have no effect on this question, whether he had this deed of trust or not, as it is still abundantly proven, that Merchant claimed title under the Stringer patent; and, whether he actually had a good title, would of course depend on whether this copy of this deed of trust was or was not evidence. But that question is not involved in this cause, but simply whether he claimed title under the Stringer patent, and this is abundantly proven.

I am unable to find any errors in this record prejudicial to the appellants. The decree of the Circuit Court of May 3, 1881, must therefore be affirmed, and the appellee must recover of the appellants his costs in this Court expended, and $30.00 damages.

Aeeirmed.