
    CHARLESTON.
    Summers et al. v. Hively.
    Submitted March 21, 1916.
    Decided March 28, 1916.
    1. Frauds, Statute of — Sale of Beatty — Enforcement of Contract.
    
    Unless the bar of the statute of frauds be removed under the rule of part performance, a written e.ontraet for the sale of real estate is not enforcible at the suit of the vendor against a vendee who has not signed the agreement personally or by agent, (p. 54).
    2. Same — Sale of Beatty — “Fast Performance’’ — Payment.
    Mere payment of the purchase money by the vendee not so signing is not sufficient part performance to render the agreement en-forcible against him. (p. 54).
    3. Same — Action by Vendor — Bights of Purchaser — Becovery of Price Paid.
    
    Where the purchaser, not signing the contract of sale, otherwise valid and mutually-binding, by reliance on the statute of frauds defeats a suit by the vendor for specific performance, he is not entitled therein, upon an answer claiming such relief, to a recovery of the part of the consideration paid by him, if the vendor is able and willing to comply with the contract on his part by executing and delivering to the vendee a good and sufficient deed for the land upon payment of the balance of the purchase money, (p. 55).
    4. Vendor and Purchaser — Action by Vendor — Merchantable Title— Adverse Possession.
    
    A vendor, suing to enforce specific performance by his vendee, must be able to convey a title to the land reasonably free from doubt or defects. But title acquired by adverse possession is sufficient, (p. 56).
    Appeal from Circuit Court, Roane County.
    Suit by Henry Summers and others against G-. L. Hively. From a decree for plaintiffs, defendant appeals.
    
      Reversed and dismissed.
    
    
      Geo. F. Cunningham, for appellant.
    
      Ryan & Boggess, for appellees.
   Lynch, Judge:

From a decree rendered in a suit in equity brought by Henry Summers and wife as vendors against G. L. Hively, requiring him specifically to perform a contract for the sale of real estate, the defendant obtained this appeal.

Apart from some contentions which to us seem wholly immaterial upon this inquiry but as to which much of the testimony was taken, two questions only demand serious consideration. Of these the first relates to the binding effect of the written contract of the sale sought to be enforced against the defendant; the other, the right of the defendant to have a ^decree for that part of the agreed consideration paid by him, should it appear upon this review that for any valid reason he can not legally be required to comply with his undertaking.

Plaintiffs signed and acknowledged the contract; defendant did not sign or acknowledge it. Nor did he enter on the land for any purpose, or exercise any dominion over it, or do any act thereon by virtue of the sale which could in any sense be construed as an indication of an intent to assume exclusive control of the land as its owner or proprietor. Although, by signing and acknowledging the paper, plaintiffs bound themselves to convey the land, if demanded by defendant, upon payment or' tender by him of the unpaid balance of the consideration therefor, the contract was unenforcible against him so long as he refrained from exercising any proprietary rights on the land or possessory control over it. No suit or action can be maintained on a contract for the sale of real estate unless the contract, or some memorandum or note thereof, be in writing and signed by the party to be charged thereby or by his duly authorized agent. Ch. 98, Code.

The only allowable, deviation from the express mandate of the statute, although not now important in view of the facts proved, indeed in view of the averments of plaintiffs’’ bill independent of the proof, recognized in this among other jurisdictions is where the vendee has entered upon the land sold, though by an oral agreement, and made valuable improvements thereon as the ostensible and virtual owner, with the knowledge and acquiescence of the vendor and holder of the legal title, and this only upon equitable principles. Capehart v. Hale, 6 W. Va. 548; Steenrod v. Railroad Co., 27 W. Va. 18. But the partial or entire payment of the consideration is not alone sneh part performance of the contract of sale as will entitle the vendor to an enforced compliance with the terms of the agreement. Miller v. Lawrence, 39 W. Va. 160; Gallagher v. Gallagher, 31 W. Va. 9; Development Co. v. Thornburg, 46 W. Va. 104; Biern v. Ray, 49 W. Va. 129.

In Land Co. v. Snidow, 86 S. E. (W. Va.) 915,. was involved the reverse of the position presented in this case. The plaintiff had not, bnt defendants had, signed the contract, and thereby subjected themselves to an enforcible liability at the option of the vendor. They could not compel it to convey, but it could compel them to pay the agreed consideration, upon a tender of a deed for the land sold, notwithstanding the rule not infrequently recognized in the absence of similar statutory provisions that for a contract to be enforcible at all the enforcibility must be reciprocal or available alike at the 'suit of either party.

As plaintiffs did aver that defendant signed the contract, although not then in their possession, and otherwise stated a good cause for relief if proved, the demurrer was properly overruled. The defect did not appear until defendant tendered his answer and with it exhibited a copy of the agreement, whereby he also denied its binding force and effect on him and other defensive matters to show want of jurisdiction to authorize such a decree as that awarded against him.

But, notwithstanding the-averment and proof of the ability, willingness and desire of plaintiffs to tender and deliver a good and sufficient deed for the real estate sold, upon payment by him of the unpaid balance of the consideration stipulated therefor, defendant claims the right to a decree in this proceeding, based upon his answer in the nature of a cross bill, requiring repayment to him of the amount paid to and received by plaintiffs on the date , the sale was made and the contract signed by them. To that decree he is not entitled (Cook v. Griffith, 86 S. E. 879), unless, as averred, the title was so defective as to render doubtful its validity as one readily marketable. In the case cited, the rule applicable here was discussed -with elaboration, and the conclusion summarized in the syllabus was: “Where the vendor in an oral contract for the sale and purchase of land, voidable by the statute of frauds, is able, ready and willing to execute the contract on his part by making, executing and delivering to the vendee a good and sufficient deed for the land, upon payment to him of the balance of purcahse money, or otherwise complying with his contract, the vendee can not in an action at law recover back money paid -the vendor on account of the purchase money.”

As to the answer plaintiffs did not reply specifically, defendant insists they are precluded from denying defects in their title as averred therein. But he has directed our attention specifically to the particular link in the chain of title that it is claimed shows an apparent infirmity affecting its marketableness. The deed deemed defective was made November 11, 1865, between the widow and heiqs of Hugh Cummings as grantors and the plaintiff Henry and his brother Martin Summers, who April 6, 1867, conveyed his moiety to the plaintiff. One of the Cummings heirs was a minor when the first grant was made. The deed purports to have been made by John Cummings in behalf of himself and as guardian of the infant, without authority conferred by any court proceedings to convey his ward’s interest in the land. Other defects in the- execution and acknowledgment of the deed are also relied upon.

But, as Henry and Martin Summers jointly held the open and uninterrupted adverse posession of the 92 acres, under color of title, until the date of the deed from Martin to Henry, and Henry thence-forward to the present, a period of nearly half a century, accompanied by the payment of taxes, without knowledge or assertion of any pretended counter claim by the infant or others, it is apparent that the danger of interruption from that source is too remote and improbable to render the title defective or doubtful to an extent warranting' the application of a rule different from that recognized in the Cook case. The facts proved in Spencer v. Sandusky, 46 W. Va. 582, showed more substantial impediments in the way of good title. Unless the status of the title be doubtful, equity' will decree specific performance of a valid contract of. sale, though the title was acquired by

hostile adverse possession, under color, continued during the prescribed statutory period. Dunn v. Stowers, 104 Va. 290; Maupin, Marketable Title,-sec. 292. Immaterial defects and technical objection will not suffice, where the purchaser substantially may acquire what he contracted for. Gibson v. Brown, 73 N. E. (Ill.) 578. After the expiration of the limitation period, a good and indefeasible title vests in an occupant under color upon compliance with the requisite character and conditions of possession. Bennett v. Pierce, 50 W. Va. 604; Core v. Wagner, 32 W. Va. 277.

Although the defense predicated on the failure of defendant to sign the contract was sufficient to exhonerate him from an enforced compliance with it, his right to a recovery against plaintiffs for the one hundred dollars paid can not be sanctioned on the grounds urged by him. Hence, our order will reverse the decree and dismiss the bill.

Reversed and dismissed.  