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sl"BOtPlO iPBUOBIIAJ(lll-FUtJD-,EQ"D'IT.(JlLB RBLIEJ'..
a bal,f inter6$t.ln cerlaln land, the other half belonlting to his ·'ch1tdrep-aa bef.l'8· to the community intel-est· of his deceased wife under the com. munn.y. law of Waahington;'" Having ·tIlallried·again,plaioti:ffoontracted to .sellthe · Wbql8,traet for $fl,OQQ. WUhQutdillclosing his, s, or the interest of 'cllHdren; 'the' putch'aser being ignorant of both; 'Plaintiff in· fO!1lled the purchaser that h& W8S unable to. because the land w84 Volldl1.is .lYife refused. share wit!Iout an inOrl'll.lled compensation; , An j\greement was then made'oetween the three that the hU'lblllld should d9nvey. hillintereatfor and the Wife hers for a large sum in add,{tion. Plaintitt dee4 'ilildreceived payment, .but the purchaser 1"8perform his agreement with the wife on tbe ground that she had no title. Be had. in fact learned' the true state of.affairs before: maklUg the: agreement,' and intended to carr, out to her.. He.ld that" as had received gool'l 'title.to a half intElreit fora proportl'Onate (If the orlgmw price, and as ali parties of deceit, equity would afford relief to none. '.
Suit :Blackburn and Sadie M. Blackburn T. Woodiug. De!(ree dismissing the bill.. GalW'/ta Pars01l8. for . O. and B.F.:Dennistm, for defendant. ','"i r
Pistrict Judge. The material faCjlts to be considered in renderipg a decision inthiscase:l,ue as follows:'fhe complainant Barbee T·. 13laakbllrncontracted with the.dt'lendant to sell and convey to him for the price of $6,OUO certain lands situated in Cheha,lis county, in this state. t1)etiUe towhicQ, as shown by the public records, was at the time in.said,cowplainaut; the same having been by him in the year 1882 the United Stawa. At the time of the purchase said complainant was the husband of M. W. Blackburn, who died after the of the patents for the entitled to inherit ,per portion of property ot berselfand husband, situated in. this state. .After tile death of hit:lfirst wife said com plainant was to his co-plaintiff, Sadie M. Bla.ckburn,and the marriage relation, between theIQ existed at the. time of the, making of said con· tract. When the contract made the defendant was not personally acquainted with ·. and did not know of the existenctl of any marriage ;relation affecting the title of Barbee T. Blackhurn to said land, or orany interest in /:laid property in the winor heirs of said deceased wife. After the makin,g of said. pon.tract, Barbee:T., through an represented,· to thede(enuant tPl1t hewasunal>le t() p.erform his contract Jully, for the reason that the property was community prop. erty, and that his wife, Sadie M. Blackburn, had not consented to the contract, and that she refused to execute a conveyance of the land with. out the p.ayment of a larger sum therefor than the price fixed by said contract. He then offered to convey all his interest in the property for one-half of said price. Thereupon, through negotiations conducted on hehalf of Barbee T. Blackburn by his said a.gent, and in behalf of his wife, Sadie M. Blackburn, throughanothtJr person, acting as her agent, 1LuI:&,'QJ;lD,
i,
:"1,.
··'BLACKBURN V. WOODING.
903
and thedefendanf aotingalso throngh an agent; sverbal understanding was arrived at to the effect that BarMe T.iBJackbamshould execute and deliver to the defendant a'warranty deed totbe property for the consideration of $3,000", and Sadie M,. Blackburn should gi.ve a quit,.; claim deed of the property to said defendant.for an additional sum of $11,489.'and said defendant was to pay to the agents of the two complainants thetotalsunl of $14,489., With the expectation that the arrangement, as understood and verbally agreed to' as aforesaid, would be f1.illycarded out, BarbeeT. Blackburn; through his said agent, ex.. ecuted and delivered a; warranty deed to the defendant, and receiV'ed from the defendant $3;000; Immediately after obtaining possession of said deed, the defendant's agent caused the same to be filed for record, refused to proceed any i'urtherin execu tion of thever!?al agreement, and at once notified said the complainants that he bad no intention of paY,ingtheadditional $11 ,489, and did not want·,thequitclaim. from Sadie M.,Blackburn', tor the reason that she had no interest in the property· The complainants did not inform the defendant at anytime of the facts' in relation to Jihe marriage of BarbeeT. Blackburn to M: W. BlackbUr:ti;or of her death, or: of the community she' had dnringher life-time in the 'property, or of the fact that there weremiIldr children of Barbf'e T. Blackburn entitled to an interest in ,said property. By the representations made, and the withholding of information of material facts, the complainants intended th.at the defendant should act under the erroneous belief that the property was the community property of the complainants, and that together they could convey a complete title. The defendant, however, through other:$ources obtained true information, and was fully informed of the facts affecting the title, and of the inability of complainants to convey the property at the time of obtaining the deed from BarbeeT. Blackburn, anc:lintentiooallyin.. duced hi III to deliver said deed by falsely pretending that he would pay the additional sum for a deed from,Sl\die M·. Blackburn. The Qf .this state il:l force at the time of the purchase of tbelands by BarbeeT'. lUackburn vested the title in him andbis then living,wife as cQmmunity property could not be sold or conveyed during her life-time, hor could any 'interel.\t pe sold or-cOnveyed both husband and wife being joined in the contract of sale or deed of conveyance·. Upon the wife the community estate was by operation oflaw so changed 8S to become atonce vested in the surviving husband the children .of the lllarriage as tenants in common. .The husband could thereafter sell and convey his undivided one-half of the property, but the interest of the children as owners of an undivided onehalf could not be affected by any contractor deed of their father. Any agreement made for the conveyance of from SadieM.Black.. burn was and is void.fol" want of considemtion, as she had no interest in the property. Her deed purporting to convey the land or any interest therein could have no effect except to deceive and defraud persons ignorant of the date of her marriage. Such being the condition of the title and the rights of the parties respecting the same, the transactions
904
FEDERAL REPOR.TER,
vol. 49.
effect amount to an attempt on the part of the complainant$ to deceive and defraud ,the defendant, and a counter-attempt on the part of the ,defendant'to deceiv:e them, with the result that the former haye received $8,000 of the' defendant's money, which the defendant paid intentionally and voluntarily , intending that. they should receive it and retain it; and the defendant has obtained possession of and retains a deed to the property foom Barbee T. Blackburn, with covenants for title, which, although it purports to convey the entire property" is, a valid conveyance of only an undivided one-haJ'f thereof; and by thel:lonveyance of said undivided one.,half interest to the defendant, Barbee T. Blackburn has in part executeda contract whioh he voluntarily made with the defendant, and in doing· 80 he has exhausted his power to perform said contract, 80 that it remains partially unperformed and broken. There has been an abatement'ofthe contract price, corresponding to the difference in value of the property conveyed by the deed and property which the vendor by said contract assumed to. sell and promised to convey. :rrhe liability of the complainant upon the covenants of his deed is no greater than upon his litokeil contract. 1 consider that there will be no failure of justice if a· conrtof equity simply leaves all the parties in the situation in which they -have placed themselves. Let there be a decree dismissing this suit, with costs to the defendant.
in
RICHMOND
&: D. R. Co.
w.
BLAKE
et ale
(C(rClrit CQWt, D. Boufh CarOUna. :March 26, 1899.)
1.
ILLjl(JA'LTAUTION--lN.nmOTION-TBNDER-PAYloIBNT NUNC PRd TUNC.
oompanYl COUld.XlOt qbject that the action of the treasurers might not be binding on the. state, wbich "was not a party, since tbe company itself had sought to havetbEl assessment deciared invalid without making the state a party to the bill the would have no right to hold the money until the submitted to Its jUrlsdictlon, as this would be taking advantage of her necessItIes to ooerce her. ,'< -
In Equity. Bill by the Richmond & Railroad Company against Blake and others, county treasurers, to epjoin the collection of taxes. Heard on a motion requiring complainant to pay certain moneys admitted to ,be due. Granted. Mitchell '&;Smith, Smythe· &: Lee, JiIitz Simons &: ,Moffett, J. T. Barron, Brawleyr:&:, Barnwell, and Cothran, Wells, A'l'lBd Jc Cothran, for complain-