
    Davis & als. v. Teays & als.
    July Term, 1846,
    Lewisburg.
    (Absent Brookjí, J.)
    1. Writ of Right — Death of Defendant — Revivid. writ of right is brought against a feme life tenant, who dies, and the demandants revive the action against her heirs at law. They claim and hold the land in controversy, not as her heirs at law, but as devisees under the will of their father. Hisitd. The demandants may revive against the heirs of the first tenant; and they may defend the action by shewing title in themselves, however derived.
    2. Ejectment-Equitable Defences — Contract /lust Be in Writing — Statute.-—The statute, Sup. Rev. Code. p. 159, 160, authorizing the defendant in an ejectment or writ of right to set up an equitable title, as a defence to the action, limits that defence to cases where the whole contract, and its precise terms, is manifested by plain written evidence. The written contract itself must be produced before the jury; and parol evidence of its contents is inadmissible, though it may have been lost or destroyed.
    3. Same — Same—To What Limited. — The equitable defence under this statute, is also limited to mortgages and deeds of trust, where the mortgage money has been fully paid, or the trust completely performed: or to sales, where the vendee has paid all the purchase money and performed everything incumbent on him. so as to entitle him to a specific execution of the contract in equity, and a conveyance of the legal title, without any condition proper in equity to be on him imposed. It must be a sale, and not a partnership in the acquisition of the land; and the terms of the contract must be plain.
    In 1833, Charles U. Davis and others, heirs at law of Charles Davis deceased, brought a writ of right in the Circuit Superior Court of Kanawha county, against *Mary Teays, to recover a tract of nine hundred and fifty acres of land lying on Cole river. The tenant appeared and disclaimed title to all but three hundred and seventy-five acres. As to that the pleadings were in the form prescribed by the Act of Assembly, and the mise was joined on the mere right. After the mise had been joined Mary Teays died; and a scire facias was issued to revive the suit against James Teays and others, her heirs at law; and the scire facias having been served upon them, the suit was revived; whereupon they appeared and tendered a special plea, in which they disclaimed to hold the land in controversy as the heirs at law of Mary Teays; and alleged that they held it as devisees under the will of their father Stephen Teays. This plea being objected to by the demandants, was rejected by the Court. The tenants afterwards moved the court to rescind the order reviving the cause against them, as improvidentljr awarded, and to quash the scire facias, but the Court overruled the motion. Before the trial of the cause they gave the demandants notice that they would set up an equitable defence under the act passed the 16th day of April 1831. Sup. Rev. Code, p. 136.
    The cause came on to be tried in May 1837, when the jury found a special verdict. Prom that verdict it appeared; That Charles Davis, the ancestor of the demandants, had made an entry of land founded on a settlement right, at the mouth and extending up Cole river; and in the year 1797, he entered into a written contract with John and Stephen Teays, that they should survey the land, and carry .the entry into grant for Davis; and also settle the same; for which they were to have one half the land, to be conveyed to them by the said Davis. This contract, though John Teays was a. party to it, was for the benefit of Stephen. They proceeded to survey the land; and Stephen Teays, early in 1798, built a house upon it, into which he immediately ^removed. The contract has been accidentally destroyed; and parol proof of its contents was produced to the jury.
    In July 1800, the Teays’ procured a patent for this land to Charles Davis. And on the 13th of November 1801, Charles Davis. and John and Stephen Teays made a further agreement in writing, which was before the jury. This agreement witnesseth: “that whereas an article of agreement has subsisted .between the mentioned parties,' bearing date the 13th of October 1797, which these premises refer to; and the said Stephen and John Teays haying proceeded to survey the tract of land therein referred to, and obtained a patent for the same; and Stephen and John Teays now calling for a division of the same, it is mutually agreed by each party, he the said Stephen acting in power for his brother John, that a division now shall take place agreeable to plat and measurement made by Reuben Slaughter, the present county surveyor. And it is agreed that Stephen and John Teays shall have the land, or part of said tract, .as referred to in former articles, on the river Kanawha, and up Cole river, as appears by the plat and division made by said Slaughter. It being also agreed on the part of Stephen and John Teays that of their part, as hereby agreed and allotted, they shall lay off to said Davis one hundred acres in addition, to him, of their said part, by running a parallel line with the division as described by the aforementioned plat. And it is hereby agreed on the part of him the said Charles Davis, that whenever it shall manifestly appear that his claim to all the tract of land as appears by record and bargain, shall be made appear his due right, and the same clear from all incumbrance and claim, or claims by others contending for the same, that he shall then make to said Stephen and John Teays a lawful right and title to them,- of their part assigned and hereby agreed on; referring to the plat as aforesaid. And it is further agreed on the part of the said Stephen and John Teays, that all suit or suits, demands, *costs or damages, accruing in holding the aforesaid land, is to.be at the risk and loss (if any) of them the said Stephen and John Teays. And it is furthermore agreed, if after said Charles Davis shall or may convey the land as herein mentioned, and if thereafter the land should appear to be the property of another person, that the said Davis shall be exempt from all damages whatsoever, as though he had made no conveyance of the same. Notwithstanding, should either party at. any time hereafter lose any part of their dividend as aforesaid, of the within mentioned land, it shall be his or their loss, and no redivision shall be by either party called for. ’ ’
    In pursuance of this agreement the land was divided; and Stephen Teays having previously in 1798, built a house on that part allotted to him, resided thereon from that time until his death in 1823, and his widow and children continued to occupy the land until the commencement of this suit: John Teays having conveyed all his interest therein to Stephen in 1817.
    The land allotted to Stephen and John Teays has been free from incumbrance since it has been in their possession; and they have quieted the only adverse claim set up to it, by purchase, without costs to the demandants or their ancestor, except that Charles Davis paid for direct taxes on the land eighteen dollars and some cents. In 1832 a certain M’Farland Wilson took possession of about one hundred and fiftyr acres of the land allotted to Davis, which he still holds, claiming under a patent dated the 26th of August 1796.
    The special verdict finds that Charles Davis, after the date of the patent to him, became and was seized in fee of said tract of land, and continued seized thereof from thence till his death in 1814, and that the demandants are his children and only heirs at law. And it finds that Stephen Teays made and published his will which after his death was duly admitted to record. *By his will he gave to his widow Mary Teays, all his property real and personal, for the maintenance of herself and children, for her life; and he authorized her to give to each of his children when they married or came of age, such portion of his estate as she should think proper; provided it was not more than an equal portion of his estate. And in pursuance of this power she about eighteen months before her death divided the land in controversy among the children.
    In June 1838, the Court pronounced its judgment on the special verdict; and held that upon the mise joined the demandants were entitled to recover; but that upon the special verdict, and upon the principles declared in the act of April 16th, 1831, the tenants would be entitled in equity to a specific execution of the agreement between Charles Davis and Stephen and John Teays; and to a conveyance from the demandants of the legal title of the portion of the land which by that agreement was allotted to Stephen and John Teays, without any condition proper in equity to be on them imposed. It was therefore adjudged that the tenants hold the land in controversy acquit of the demandants and their heirs forever. From this judg-ment the demandants applied to this Court for a supersedeas, which was allowed.
    The cause was argued in this Court by G. N. Johnson, for the appellants, and B. H. Smith, for the appellees.
    
      
      "Abatement and Revival — Death of Defendant. — In Stockton v. Copeland, 30 W. Va. 679. 5 S. E. Rep. 145, it is said: “At common law, the death of either party pending the action (if there be but one on that side) abates it, but it is admissible to revive it if it were originally maintainable by or against the personal representative, if it be a personal action, and if a real or mixed action, by or against the heir or devisee. Davis v. Teays, 3 Gratt, 290; Ruffners v. Lewis, 7 Leigh 742.
    
    
      
       Ejectment — Equitable Defences — Statute.—The doctrine that in ejectment the title in fee must prevail over a mere equitable interest, led to the enactment of the statute allowing equitable defences against a naked legal title, where there is written evidence of the contract and the vendee has complied with all the terms, so as to entitle him to a conveyance, without condition. Suttle v. R. F. & P. R. Co., 76 Va. 290, citing Davis v. Teays, 3 Gratt. 283. The principal case is also cited upon this question in Jennings v. Gravely, 92 Va. 379, 23 S. E. Rep. 763; Hawkins v. Wilson, 1 W. Va. 123. See monographic note on “Ej ectment” appended to Tapscott v. Cobbs. 11 Gratt. 172.
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the intent of the Legislature in the enactment of the 65th, 66th and 67th sections of the law establishing the Circuit Superior Courts, Supp. Rev. Code, p. 159, 160, was to authorize in any ejectment, or writ of right, or other real action, the introduction, to a limited extent, of certain matters of equitable defence. The object seems to have been to *prevent in cases sometimes occurring, of a plain nature, an oppressive use from being made of the mere legal title, for the purpose of turning out of possession, and driving into a Court of Equity for relief, the substantial, though not formal owner, invested with a complete equitable right, but unprotected by a technical release or conveyance. The Legislative enactment appears to have been dictated, not by a general but a, restricted policy, having in view on the one hand, the preventing of gross injustice to the tenants in possession; and on the other, guarding against the evils of a complicated and protracted litigation, upon principles theretofore unknown to the legal forum. A few classes of cases only were therefore selected, and restricted within narrow limits by careful and cautious provisions.

The 65th section provides for mortgages and deeds of trust, where the mortgage money has been fully paid or the trust completely performed, and nothing remains in the mortgagee or trustee but the shell of legal title, which equity and good conscience require should be absolutely and unconditionally conveyed to the adverse party.

The 66th and 67th sections provide for cases of sales of estates where the vendee has paid up all the purchase money, and performed every thing incumbent on him, so as to entitle him to a specific execution of the contract in equity, and to a conveyance of the legal title, without any condition proper in equity to be on him imposed.

In both classes of cases, the statute requires that the contract, and its precise terms, shall be manifested by plain written evidence. This results in regard to the first class of cases from the very nature of the contract, and in regard to the second is prescribed by language so explicit as to exclude all parol evidence of the terms of the contract; which as to both is admitted only upon the question of performance. The 66th section prescribes, *as a condition of the equitable de-fence, that the vendee or his heirs “shall have plain written evidence,” &c. ; thus exacting that the written contract itself shall be produced before the jury, and excluding parol evidence of its contents, though it may have been lost or destroyed. Nor is there any hardship in this, when we consider that a verdict for the defendant upon the equitable matter is decisive against his adversary, and operates as a conveyance of the legal title, whereas a verdict against the defendant places him in no worse situation than he was in before the statute, inasmuch as he may still resort for relief to a Court of Equity.

In the present case, the tenants did not produce on the trial written evidence of the entire contract on which they relied to sustain their equitable defence. The articles of agreement of the 13th of November 1801, between Charles Davis and Stephen and John Teays. which they gave in evidence, refers to a previous written contract on the same subject, between those parties of the 13th of October 1797, without reciting it, or stating its provisions, but treating it as the original and still operative agreement between them, which it was the object of the new agreement to carry out, with some modifications and additional stipulations, to the correct understanding of which, evidence of the provisions of the first agreement was indispensable; and accordingly it was furnished, not by producing the instrument itself, but by introducing parol testimony of its substance, on the ground that the original had been lost or destroyed. But the Court is of opinion that the two agreements formed one entire contract, and that the parol evidence to prove the first was inadmissible.

The equitable defence made by the tenants, is, however, objectionable upon another ground, more comprehensive. The contract which they proved was not a sale of land within the true intent and meaning of the statute; and was more in the nature of a partnership *than a sale; Davis on his part furnishing an entry of land, which John and Stephen Teays undertook to survey, settle upon and carry into grant, and the parties agreeing to make partition of the land between them, after the title should be perfected. The stipulations of the supplemental agreement, moreover, do not shew that it is a case proper for specific execution by a conveyance of the legal title from the demandants, without any condition proper in equity to be imposed on the tenants. On the contrary, upon that point the agreement, so far from being “plain,” in the language of the statute, is obscure and difficult in its construction, but would seem to indicate at least that Davis had a right to withhold, under some circumstances, a conveyance of the legal title, for the share of the other parties, until indemnified against costs and expenses occasioned by contests with some description of adverse claimants.

Eor these and other reasons, it seems to the Court that the facts found by the jury in their special verdict do not make out an equitable defence in the action, such as is warranted by the statute: but, on the contrary, establish a legal title in the demand-ants, upon which they are entitled to recover, notwithstanding the objection of a legal nature presented in different forms on the part of the tenants, in various stages of the action. That objection is in substance that Mary Teays, the original tenant in the action, having died during its progress, the same could not be revived, and successfully prosecuted against the present tenants therein, who are her heirs at law, because they do not claim the land in controversy as heirs at law of the said Mary Teays, but as her appointees of the remainder in fee after the expiration of her life estate, under a pow'er of appointment conferred upon her, by the last will and testament of her husband, the aforesaid Stephen Teays. But the Court is of opinion, that the demandants had a right to revive and prosecute their action against the heirs of the ^deceased original tenant therein, without regard to the nature of the title under which they claimed the land in controversy, and that they the present tenants in the action had a right to shew upon the trial of the mise, any title in themselves however derived, better than that of the demandants.

Judgment reversed.  