Willey v. Morrow , 1 Wash. Terr. 474 ( 1875 )

Opinion by

Wingard, Associate Justice.

This was a suit brought by plaintiff in error, who- was plaintiff below, to compel the specific performance of a parol agreement to convey certain real estate.

There is no testimony brought to this court by the record, and the findings of fact,.by the judge of the District court, are tahen by this court to be the true facts of the case; and they are as follows, substantially, to wit:

1. That in August,. 1867, the defendant, Morrow, owned and possessed the land described in plaintiff’s bill.

2. That he owned the same by virtue of settlement, under • the “Donation Act” of September 27,1850, and amendments.

8. That he was a honafide settler, and was entitled, on final proof, to a patent for the land.

4. That on-day of August, 1867, Be made final proof,' and received his patent.

5. That in August, 1867, he entered into an agreement with plaintiff, to sell and convey to him, said land, for $100.

, 6. That afterwards plaintiff paid Morrow $100.00 with interest at 10 per cent, per year, from the date of said agreement,, in full satisfaction for the land.

7. That in the fall of 1867, pursuant to said "agreement,. Morrow let plaintiff, and plaintiff entered into full, open, (not .■clandestine) and quiet possession of said land.

8. That plaintiff continued in full, open and quiet possession of said land, and exercised occasional acts of ownership in removing crops, pasturing cattle and repairing fences on the same, until the deed to McDonald was made by Morrow.

9. That Morrow has hitherto neglected and refused to give plaintiff any deed for said land.

10. That Morrow in 1873, long after the payment by plaintiff of the $100.00 to him, agreed with McDonald to sell and convey the same land, in consideration of McDonald paying the costs and expenses incident to making final proof in the land office.

11. That pursuant to said agreement, Morrow made the final proof in April or May, 1873, and before the 19th of the latter month.

12. That pursuant to said agreement, McDonald paid all costs and expenses of final proof.

13. That Morrow on the 19th of May, 1873, delivered to McDonald a deed for said land.

14. That McDonald had said deed recorded in May, 1873, in Mason county, Washington Territory.

15. That at the time of making the agreement in the 10th finding mentioned, the possession of said plaintiff of the land was not actually known to McDonald.

16. That at the time of the making of the agreement in the 10th finding mentioned, the plaintiff’s possession of said land was not, nor was it at any time afterward notorious or manifest to the world.

17. That McDonald had no aetual notice of any of the facts found in fifth, sixth and seventh findings above, nor of plaintiff’s claim of title to said land or to the possession of it, nor of any other fact sufficient to put him on inquiry, before McDonald had paid the costs, etc., of said final proof.

18. That after payment of said costs, etc., and before the delivery to him of the deed by Morrow^MeDonald had full actual notice of the facts found in the fifth, sixth and seventh findings and of plaintiff’s title to, and possession of said land.

19. That Morrow has been guilty of fraud in agreeing to sell to plaintiff, as heretofore found, and afterwards selling and making a deed to McDonald.

20. That all the acts were done and the parties resided in Washington Territory.

21. That said land at the date of the deed to McDonald, was reasonably worth $1000.

22. That Mary McDonald is the wife of Thomas McDonald.

On the foregoing facts, the judge found, as conclusions of law:

1. That plaintiff’s bill should be dismissed as against defendants, Thomas McDonald and Mary, his wife, and that they have their costs.

2. That said plaintiff should have and recover of, and from defendant, V. P. Morrow, the sum of $100.00 with interest at the rate of ten per cent, per amwm, from the 31st day of August, 1867, up to the day on which a final decree shall be entered herein, as damages for the failure by said Morrow specifically to perform on his part, his agreement found in the fifth finding of fact, and that plaintiff have and • recover from said Morrow, his costs therein.

These conclusions of law are complained of by the plaintiff in error, as erroneous from the facts found by the judge.

On the question as to whether McDonald, on the facts found, is entitled- to be considered as a bona fide purchaser, for value without notice, this court is divided, but as there is nothing which indicates an abuse of discretion in the court below, we affirm the finding on the first proposition of law, viz: that plaintiff’s bill be dismissed as against defendants, Thomas W., and Mary McDonald, especially as it is no where alleged, nor does it appear that the plaintiff may not be made whole by the recovery of damages from' defendant Morrow.

We are unable to see how the learned judge of the District court, upon the 19th and 21st findings of fact, should arrive at his second conclusion of law.

We think, that having found that Morrow was- guilty of fraud, as stated in the 19th finding, the settled rule of damages-would be the value of the land at the time of the breach of contract.

That value was-found to be $1009.

The seeond conclusion of law, of the court below, is therefore modified to stand' as follows, to wit: “ That said plaintiff,. Enoch L. Willey, should have and recover of, and from said defendant, V. P. Morrow, the sum of $1000 with interest at the rate of ten per cent, per annum, from the 19th day of May, 1878, until paid, as damages for the failure by the said V. P. Morrow,, specifically to perform, on his part, his agreement with the plaintiff, as in the fifth finding mentioned, and that said plaintiff have and recover from said Morrow, his costs herein; and it is ordered that a decree be entered in this court in conformity with the foregoing conclusions of law.