A conveyed to B a large quantity of land for $5 an acre, to be
paid in installments with legal interest on deferred payments from
June 3, 1873. Suits were pending as to some of the lands, and it
was agreed that if recovery should be had against A as in any of
the suits, the land so recovered should not form part of the land
sold, and the last installment of $50,000 was agreed to be reserved
until decision of the suits and ascertainment of quantity.
Page 111 U. S. 790
Held (1) that A was entitled to interest according to
the agreement on deferred payments as to all lands of which he was
in possession whether, in suit or not; (2) that as to all lands
held adversely he was entitled to interest from the entry of
judgment in his favor in the ejectment suits; (3) as to lands
within the bounds of the description, the title to which was
acquired by him after its date, to interest only from the date of
the acquisition of the title; (4) and as to the last installment of
the deferred payments, to interest from June 3, 1873.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
On the 2d of February, 1874, John D. Lewis conveyed to George W.
Norris and Henry Clarke three certain tracts of land embraced
within the exterior boundaries of a survey of 40,000 acres granted
by the Commonwealth of Virginia to Jacob Skyles on the 11th of
July, 1798. The instrument by which the conveyance was made was
signed by both parties, and contained not only a grant of the land,
but an agreement on the part of the grantees for the payment of the
purchase money. That agreement was as follows:
"The consideration of this deed is five dollars per acre as
aforesaid, to be paid as follows: $50,000 in cash, the receipt
whereof is hereby acknowledged; $25,000 to be paid on the 1st day
of October, 1874; $25,000 on the 1st day of April, 1875; $50,000 on
the 1st day of January, 1876, and $50,000, or whatever may be the
balance due, on the 1st day of January, 1877, with legal interest
on all the deferred payments from the 3rd day of June, 1873, said
interest to be paid semiannually, commencing on the 1st day of
July, 1874. And it is further understood and agreed by the parties
to this deed that an accurate survey of the lands hereby granted
shall be made under the direction and superintendence of S. A.
Miller, of Charleston, to ascertain the true quantity of lands
intended to be granted, such survey to be made by running the
exterior lines embracing the said three lots made by Surveyor
and
Page 111 U. S. 791
Commissioner Thomas S. A. Matthews, previous to the sale, and
now of record in the proceedings aforementioned, and as described
and set forth in this deed, and in the deed from James M. Laidly,
survey commissioner, of himself and said Matthews, under the
decrees and orders in said proceedings for the sale of Jacob
Skyles' survey of 40,000. And, as it is further known that there
are sundry suits pending in the circuit court of Kanawha County
between the said John D. Lewis, as defendant, and Hale and
McMullin, George Belcher, W. A. McMullin, J. L. McMullin, and
George W. Morrison, as plaintiffs, all of which are now submitted
to arbitration by an order of said circuit court; it is further
agreed that any recovery of any land within the boundaries
aforesaid shall be and constitute no part of the lands herein sold
and granted, but be deducted therefrom at the said rate of five
dollars per acre, the said John D. Lewis agreeing to use all
diligence in the prosecution of said suits, so as to obtain a
speedy trial; . . . it is further understood and agreed that the
last payment, or balance of $50,000, due first of January, 1877,
and interest, is reserved until the decision of said suits, and the
ascertainment of quantity, and the said John D. Lewis hereby
reserves a claim upon the land hereby granted for the payment of
the purchase money, and the interest thereon of all the deferred
installments as hereinbefore provided."
The cash installment of $50,000 was paid, as was also the
installment of $25,000 due on the 1st of October, 1874. Default
having been made in the payment of the amount falling due on the
1st of April, 1875, and the interest maturing July 1, 1875, Lewis
filed this bill in the Circuit Court of Kanawha County, West
Virginia, on the 17th of August, 1875, to enforce his vendor's
lien.
The survey made pursuant to the agreement showed that there were
within the exterior boundaries of the tracts conveyed 39,000 acres,
but it is not claimed that payment is to be made for more than
36,244 acres, the title having failed to all the rest.
The suits pending at the time the sale was made involved the
title to 19,716 acres, but of this amount only 165 acres were
in
Page 111 U. S. 792
the actual possession of anyone adversely to Lewis. On the 24th
of November, 1874, the reference which had been made of the suits
to arbitration, mentioned in the agreement, was set aside by order
of the court, on account of the failure of the arbitrators to act.
At the June term, 1875, of the court, a special jury was summoned
for the trial of the causes on the 22d of the month, but, before
that day arrived, the court adjourned for the term. In January,
1876, one of the suits was tried, but the jury failing to agree,
the suits were all continued. On the 30th of May, 1876, another
agreement for submission to arbitration was entered into, and on
the 24th of August, 1876, an award was filed, but for some reason
it was not confirmed by the court until December, 1877, when
judgments were entered in accordance with its requirements. On the
23rd of January, 1880, the several plaintiffs in the ejectment
suits applied to the Court of Appeals of West Virginia for the
allowance of writs of error to review these judgments, but the
applications were all refused on that day.
There is in the record evidence of the recovery of a judgment,
in the District Court of the United States for the District of West
Virginia, by Coles P. Huntington, on the 13th of October, 1875,
against John Lewis Taylor, for the recovery of the possession of
400 acres of land. The judgment was recovered by default, and it
does not appear when the suit was begun, or by what right Taylor
was in possession. At the next term of the court, Clarke and Norris
appeared and asked that the verdict and judgment be set aside, and
a new trial ordered. They alleged that the judgment might affect
their rights, and that they had no notice of the suit. This motion
was taken under advisement by the court, but there is no evidence
showing what disposition has been made of it. The court below
deducted this recovery from the land to be paid for, and rendered a
decree upon the following basis: land to be paid for, 35,575 acres;
in litigation at the time of the sale, 19,716 acres.
As to the lands not in dispute, the decree was for the contract
price per acre, with interest from June 3, 1973,
Page 111 U. S. 793
March 2, 1881, deducting payments as they had been made. As to
the lands in dispute, it was for the agreed price, and interest
from January 23, 1880, the date of the refusal of the Court of
Appeals to allow the writs of error, until March 2, 1881. The
difference between the 36,244 acres claimed by the appellant and
35,775 allowed by the court, or 469 acres, arises from the failure
of the court to correct a former allowance of 200 acres for one of
the parcels to which the title had failed when, by actual survey
since that time, it has been found to contain only 131 acres -- a
difference of 69 acres -- and the deduction of the Huntington
recovery of 400 acres from the amount to be paid for.
The questions presented here are:
1. As to the error of 69 acres;
2. As to the deduction of 400 acres recovered by Huntington,
and
3. As to the time from which interest shall be charged on the
price of the lands in dispute when the sale was made.
As to the 69 acres, we think the claim of the appellant, the
representative of Lewis, is right. The report of the master shows
the facts, and it is evident that in the original interlocutory
decree the amount was fixed by the deduction of an estimated
quantity contained in one of the disputed tracts, and not by an
actual survey. The survey having since been made and the true
quantity ascertained, the decree ought to be made to conform to the
actual facts.
As to the Huntington recovery of 400 acres, the testimony is so
meager and indefinite that we are not inclined to disturb the
decree below. There has been a judgment for the recovery of the
possession, and it was obtained at a time when Lewis was in
litigation about his titles. No notice of the suit was ever served
on Clarke & Norris. It does not appear that Taylor was in
possession through them, and under the circumstances of the case,
Lewis was as much bound to defend as they were.
As to the interest, we think the court was in error. The master
has found, and about this there is no dispute, that Lewis
Page 111 U. S. 794
was in actual possession of 34,267 acres. By this we suppose is
meant that to this extent the tract was not actually held adversely
to Lewis by anyone. Clearly, therefore, Clark & Norris could
enter at any time. The principal pending litigation was against
Lewis to get him out of possession, not by him to get into
possession. Of the remaining 1,977 acres, Lewis had no title to
1,412 acres, and he was actually out of possession of 165. The
Huntington 400 acres made up the rest. As to the price of the acres
to which Lewis had title, and of which he was in possession, actual
or constructive, we think he is entitled to interest on all
deferred payments from June 3, 1873. As to all acres to be paid for
which were held adversely, interest should be charged from the time
of the judgments in the ejectment suits upon the award of the
arbitrators, which was December 20, 1877. As to the lands to which
title was acquired after the conveyance, interest should only be
calculated from the date of the acquisition of title. No interest
should be calculated on the cash payment of $50,000 at the time of
the conveyance. This seems to us to be in accordance with the true
construction of the contract of purchase as it was reduced to
writing by the parties. We can take notice of no understandings
prior to the writing as to what the contract was to be. The
conveyance was of all the lands inside the exterior lines of the
tracts to which Lewis had title, and for these five dollars per
acre was to be paid, with interest from June 3, 1873, on the
deferred payments. This language is plain and unambiguous. The fact
of adverse claims to portions of the property was understood by
all, and this condition of things was specially provided for in the
agreement of purchase. The payments were to be at the rate of five
dollars per acre for all the land the title to which was eventually
secured. Lewis was to use due diligence in the prosecution of the
suits so as to obtain a speedy trial. We find nothing in the record
to show that he was at fault in this particular. As the original
arbitrators failed to perform their duties, that submission was set
aside. A trial to a jury was then had without any practical result,
when a new submission was agreed on and an award promptly obtained.
There was some delay in securing final
Page 111 U. S. 795
judgments upon this award, but we see no evidence of such
neglect on the part of Lewis in this particular as amounts to a
breach of his contract. He certainly could not control the conduct
of his adversaries in their applications for the allowance of writs
of error, and therefore is not chargeable with damages for the
delay in that particular. He secured his judgments, and the court
of appeals has refused to disturb them.
We come now to consider the effect of the last clause in the
agreement, which is in these words:
"It is further understood and agreed that the last payment or
balance of $50,000, due January 1, 1877, and interest, is reserved
until the decision of said suits, and the ascertainment of
quantity."
This shows that the parties were of opinion that the lands when
surveyed, and all the suits decided, would not fall more than
10,000 acres short of the estimated quantity. It also shows that it
was anticipated the suits might not all be decided until after
January 1, 1877, the date of the maturity of the last installment,
because the payment of that installment, whatever should be its
amount, was postponed until the quantity was ascertained and the
suits decided. The only provision as to delay in securing title was
that the suits should be prosecuted with diligence, and that the
last installment was not to be demanded until the events had
happened which were to settle finally its amount. When paid,
however, the last installment was to carry interest from the third
of June, 1873, like all the rest. If it had appeared that Lewis
delayed unreasonably the prosecution of the suits, or the
ascertainment of the quantity, we might have stopped the interest
as compensation for his neglect in such particulars; but the only
delay in the prosecution of the suits which could by any
possibility be made the cause of complaint was that between the
filing of the awards and the judgments thereon. On full
consideration, however, we are of opinion that Lewis ought not be
made responsible for this. By a failure to serve the necessary
notices, the judgments were delayed one term of the court. This
appears to have been by accident, rather than design, and it was
long after Clarke & Norris were in default for a failure to
perform their agreement.
In our opinion, the decree should have been in favor of the
Page 111 U. S. 796
appellant in accordance with the statement of account made by
the master numbered 22, save only that no interest should be
charged on $50,000 of the purchase money represented by what was
accepted as the cash payment. By the express terms of the
agreement, interest was only to be paid on the deferred
installments.
The decree is reversed as to the amount found due and
affirmed in all other respects, and the cause is remanded with
instructions to modify the decree as originally entered by
inserting the amount ascertained to be due on the principle of
accounting as indicated in this opinion, and for further
proceedings according to law.