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marked, and we after allowing a proper variation have staked out the same, also the line described as running north 36 degrees west 146 poles to a sugar stump, also the line running north 5 degrees west 28 poles to a white oak now standing, all of which we respectfully submit. [Signed] Robt. B. Woods. A. S. Eagleson."

The evidence clearly indicates that such fences between the two farms as were in existence at that time were substantially on the line as fixed by the award. They were irregular and in bad repair, and seem never to have been of uniform construction and such as might be considered good fences. They were irregular in location, not exactly following the line, but adhering substantially thereto, and in some places consisted of posts and rails, in others of posts and plank, and in others of palings or pickets. After the arbitration some slight changes were made in portions thereof, and the parties continued to hold possession in substantially the same manner as they had done before. Cox did not obtain the Milligan tract of land until the fall of 1898, nor take possession of it until the spring of 1899. He had come into the neighborhood from elsewhere in the fall of 1881, some months after the award had been made, and, according to his testimony, and so far as the evidence shows, knew and had heard nothing of the boundary line controversy or the arbitration and award. In the year 1902, ignorant, as he claims, of all that had transpired between his predecessors in title and Orr, he sought information from James Orr as to what understanding or agreement had existed concerning the respective obligations to build or maintain the division fences. He wanted to know which portion of it he should repair. In reply he was informed that a controversy existed as to the location of the line, which it would be necessary to settle before dividing it for the purposes of building and maintaining fences thereon. To this he assented, and, soon afterwards, Clement C. Smith came, at the solicitation of Orr, and, by consent of both parties, ran the line; the parties contributing equally to the expenses thereof. Having followed the calls of the deed from south to north, his survey, when completed, located the line as claimed by Orr. In the following fall and spring, Orr removed to the Smith line the south half of the fence, and, in the spring after the survey, Cox set the posts on the Smith line for the north half of it. Before completion of it, he heard of, and found, the award, and immediately afterwards took up his posts, tore down the fence Orr had built, and put up a fence on the old line as fixed by the Eagleson and Woods award, and Orr then brought this suit to enforce the alleged agreement to accept the line as located by Smith.

The bill proceeds upon an alleged right to have specific performance of an oral agreement for the sale of real estate taken out of

the statute of frauds by part performance thereof. Whether the action of Smith, pursuant to the agreement of the parties, be regarded as an award, or the action of the parties in having Smith run the line, and then so changing their respective possessory holdings as to conform to it, as an agreement, the inquiry concerning jurisdiction in equity will be governed by the same principles. It is neither an award, determining that an agreement to sell or convey land has been made, nor an agreement to sell or convey. It is merely an award or an agreement which is relied upon as concluding the parties on the question of the true location of the boundary line. Should the contention of Orr be sustained, his title to the land in dispute would rest, not upon the oral agreement, but upon his deed. The agreement or award, defining the boundary line, would pass no title.

"It may be regarded as settled that a disputed boundary between two adjoining proprietors may be settled by parol agreement, when the agreement is accompanied by possession according thereto. Such parol agreement is not regarded as passing any real estate from one proprietor to the other, but as simply ascertaining the line to which their respective deeds extend; and hence it follows that long acquiescence by one of adjoining proprietors in a boundary line as established by the other is evidence of an agreement that such is the boundary." Gwynn v. Schwartz, 32 W. Va. 487, 500, 9 S. E. 880. To the effect that such an agreement is not within the statute of frauds, see Smith v. Hamilton, 20 Mich. 438, 4 Am. Rep. 398; Vosburgh v. Teator, 32 N. Y. 565; Raynor v. Timeraon, 51 Barb. (N. Y.) 530; Baldwin v. Brown, 16 N. Y. 359; Turner v. Baker, 64 Mo. 218, 27 Am. Rep. 226; Taylor v. Zepp, 14 Mo. 482, 55 Am. Dec. 113; Blair v. Smith, 16 Mo. 273; Spears v. Walker, 1 Head (Tenn.) 166; Tarrant v. Terry, 1 Bay (S. C.) 239; Cutler v. Callison, 72 Ill. 113; Crowell v. Maughs, 2 Gilman (Ill.) 419, 43 Am. Dec. 62; Kip v. Norton, 12 Wend. (N. Y.) 127, 27 Am. Dec. 120; McCormick v. Barnum, 10 Wend. (N. Y.) 109; Hagey v. Detweiler, 35 Pa. 409. This rule seems to be subject to the qualification that the true location of the line must be in doubt. Many authorities hold that if its location is known, and not disputed, an agreement upon a different line amounts to an agreement to convey, and is void, if not reduced to writing or taken out of the statute by part performance. Terry V. Chandler, 16 N. Y. 354, 69 Am. Dec. 707; Jackson v. Douglas, 8 Johns. (N. Y.) 367; Stuyvesant v. Tompkins, 9 Johns. (N. Y.) 61; Pasley v. English, 5 Grat. (Va.) 141.

Tested by the principles just stated, the award or agreement, no matter which, set up by the bill, does not require from Cox a conveyance of any land, but, on the contrary, merely identifies and makes certain the location of a disputed boundary line between the lands owned by him and Orr-a location as

It

to which the evidence was by them considered so uncertain and conflicting as to make its identity unknown or doubtful. This being so, there is no occasion for resorting to equity. Each has the legal title to all the land he claims, neither is trustee for the other in any sense or degree, and each has a full, complete, and adequate remedy at law. If Orr can sustain his claim to the land in dispute by establishing the location of the boundary line as claimed by him, by the calls of the deeds, by agreement, or by the award of an arbitrator, he can do it in a court of law as well as in a court of equity. If what Smith did at the instance of the parties can be considered an award, jurisdiction in equity cannot be founded upon it, for the reason that it is mere evidence, to be considered in ascertaining the location of the line. creates no new right or title, on the one side, and imposes no new or additional obligation on the other. It requires no act to be done by either party, and, if it did, equity would not interpose to enforce it, unless the act required were such in its nature that the law affords no remedy, or only an inadequate one, for its nonperformance. Morse Arb. & Aw. 602, 603; Russell on Arb. (3d Ed.) 545; Jones v. Boston Mill Corp., 4 Pick. (Mass.) 507, 16 Am. Dec. 358; McNeil v. Magee, 5 Mason (U. S.) 244, Fed. Cas. No. 8,915. Judge Story said, in the case last cited, that equity in such cases simply executes the agreement of the parties, "ascertained and fixed by the arbitrators." In Jones v. Boston Mill Corp., Chief Justice Parker declared a decree in such case to be "the specific performance of a contract in writing; for the submission is the agreement. It is virtually a contract to do what shall be awarded, and there does not seem to be any reason why it is not as much the subject of equity power, as if the contract were complete without the interference of an arbitrator." From this it necessarily follows that the thing awarded cannot be had by way of specific performance in equity, unless it be such in nature as would make that form of remedy appropriate if it were matter of mere agreement, and not of award.

These views result in the conclusion that the demurrer to the bill should have been sustained, and, as the evidence taken tends to prove no more than is stated in the bill, if all that is claimed for it be conceded, no case for equity jurisdiction appears in either the bill or the evidence. Under such circumstances, this court, on reversing the decree, will not remand the cause with leave to amend the bill, but will reverse and annul the decree and dismiss the bill. Bier v. Smith, 25 W. Va. 830, 837.

For the reasons stated, the decree appealed from will be reversed, the demurrer sustained, the bill dismissed, and a decree entered, requiring the appellee to pay to the appellant his costs in this court and in the circuit court.

(61 W. Va. 373)

STARCHER BROS. v. DUTY et al. (Supreme Court of Appeals of West Virginia. Feb 19, 1907.)

1. SPECIFIC PERFORMANCE - OBJECTIONS TO RELIEF INEQUALITY—INDEFINITENESS OF CONTRACT.

Specific performance of an option contract for the purchase of land will not be decreed in favor of the optionee against the optionor, even though the optionee is free from any intention to take an unfair advantage, if the actual result would be an inequality resulting from ig norance or inexperience, or where the terms of the contract are so indefinite, or assented to with such lack of caution, that the enforcement of the contract would produce an inequality not foreseen by the defendant.

[Ed. Note.-For_cases in point, see Cent. Dig. vol. 44. Specific Performance, 35.]

2. PERPETUITIES-SUSPENSION OF ALIENATION -REAL PRoperty.

Such an option contract, good for one year. and providing for extending it for another year on payment of a stipulated sum, and containing also a provision that the optionee "may have this option and agreement so extended from year to year upon the payment of said sum annually as aforesaid," and extending its provisions to the heirs, assigns, executors, and administrators of both parties, is void by the rule against perpetuities.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Perpetuities, §§ 46, 47.] 3. SAME.

Such an option contract is void from its inception, and anything done by the parties thereto designed to carry the contract into effect, which is auxiliary thereto, will be treated as unauthorized and inoperative. SAME-CONTRACTS LIMITED.

4. Whenever a contract raises an equitable right in property which the obligee can enforce in chancery by a decree for specific performance, such equitable right is subject to the rule against perpetuities.

5. SAME.

The mere fact that a contingent interest may be released by a person in being, and that a good title may thus be made, is not enough to take the case out of the rule against perpetuities.

(Syllabus by the Court.)

Appeal from Circuit Court, Lincoln County, Action by Starcher Bros. against Jeff Duty and others. From a decree in favor of de fendants, plaintiffs appeal. Affirmed.

Chas. E. Hogg and Walter Pendleton, for appellants. Wyatt & Graham, for appellees.

MILLER, J. The plaintiffs below have appealed from the decree of the circuit court of Lincoln county, denying them the specific execution of an option contract for the sale and purchase of a tract of 170 acres of land. The court below, by its decree of December 8, 1905, denied the relief prayed for, dissolved the injunction awarded, and dismissed the plaintiffs' bill.

The contract, dated April 5, 1902, was signed by Jeff Duty and Elizabeth, his wife, by their marks, and was acknowledged before Philip Hager, Jr., a notary public, April 7, 1902. The contract acknowledges a con. sideration of $11 paid down, and was conditioned on the optionees electing to take

and accept the land on or before April 5, 1903, and in that event that they should thereupon pay the optionors at the rate of $6 per acre for all the land, to be ascertained by a survey made in the usual way at the expense of the purchasers, to whom the sellers were to execute an apt and proper deed of general warranty, clear of all incumbrances. The contract also contained the proviso that Starcher Bros. might, prior to April 5, 1903, pay to the first parties, or deposit "to their credit in the Huntington National Bank, their heirs, assigns or personal representatives, the sum of $10.00, which shall constitute and be in full consideration for the extension of this option and agreement for the period of one year from said last-mentioned date, and upon payment thereof this contract and option shall be so extended." There is then superadded this further provision, and the one upon which this litigation mainly depends: "And said Starcher Brothers may have this option and agreement so extended from year to year upon the payment of said sum annually as aforesaid." By the last clause of the contract also: "It is understood that the terms and stipulations of this agreement shall extend and apply to the heirs, assigns, executors and administrators of both parties hereto."

This record shows that this contract, and other contracts for lands taken from other persons residing in the same locality, including the one taken from J. F. Duty, a brother of Jeff Duty, were prepared on printed forms provided by the optionors. At the time the contracts with Jeff Duty and J. F. Duty were procured, C. W. Starcher, a member of the firm of Starcher Bros., and one Bee, employed by the firm to assist in taking these contracts, met Jeff Duty and his brother, J. F. Duty, on Broad Branch in Lincoln county, where they agreed to give an option on their lands for the period of two years, upon terms substantially as set forth in the written contract, but declined to make them run for a longer period. And they both say that the contracts as executed were explained to them by Starcher and Bee to be limited to two years. There is, however, some conflict of evidence on this subject-not important, in our view of the case, to be considered upon this appeal. There is no denying the fact that Jeff Duty and his wife, Elizabeth, and his brother, J. F. Duty, were all ignorant and illiterate persons. Neither Jeff Duty nor his wife could read or write. Philip Hager, Jr., the notary public who was employed by Bee, the agent of Starcher Bros., to procure the acknowledgments to these contracts, testifies that he was instructed by Bee not to read the option contracts to these people.

As soon as these contracts were taken and acknowledged, they were promptly recorded in Lincoln county. The optionors did not elect to take the land the first year, but instead, and prior to April 5, 1903, they de

posited $10 in the bank as stipulated in the contract, carrying the option over to April 5, 1904-the period of two years which, according to the professed understanding of the optionors, was the extreme limit of time to which it could go. But these prospective purchasers did not elect to take the land during the second year; but, depending upon the provision of the contract for extending it from year to year, they again, and prior to April 5, 1904, made a second deposit of $10 in the bank to the credit of optionors, which they received from and receipted for to the bank-thereby, according to the terms of the contract, extending it to April 5, 1905. It is also shown that Starcher Bros. made a third deposit in the bank to the credit of Duty prior to April 5, 1905, but which was never accepted by Duty, and in their bill the plaintiffs charge, and it is proven, that, prior to April 5, 1905, they gave notice to Duty of their election to take the land, and proposed to make the survey and demanded a deed, which Duty refused to execute. But in the meantime, and in March, 1905, after notifying the plaintiffs that his contract with them had expired, Duty and wife undertook to sell the timber on the land to the defeudants the Williams Lumber Company, a copartnership, for $750; Duty depositing the deed, and the lumber company the cash payment and the notes for the deferred payments, in a bank at Huntington, until all incumbrances should be removed. Besides their defense that the contract did not give the plaintiffs an option to purchase beyond April 5, 1904, and reciting their inability to read the contract and their dependence upon and trust in the plaintiffs to give them proper information and instructions in regard to the meaning of the contract, they further say that, if they executed a writing containing any provision for annual renewals, "they were induced to extend the same by misrepresentation and fraud." They also plead the illegality of the provision of the contract for annual extensions of the option.

The record therefore presents two questions for our consideration: First, and conceding it to be valid, should a court of equity under all the circumstances specifically enforce the contract? And, second, is the contract a valid one which the court, with judicial discretion, and if so disposed, can enforce? It seems quite clear, although conceding that Duty and wife may have been overreached and induced by misrepresentation and fraud to execute a contract to run for more than two years, nevertheless, having accepted the $10 deposited to their credit in March, 1904, to extend the contract for a year beyond the two years, they ought to be concluded thereby and required to execute the same, and they will be, unless there is something inherent in the contract itself and so fatal to its life and validity as to forbid its enforcement. If Duty and wife had stood upon their contract as a contract for two

years, and had declined to accept the money deposited to extend it for a longer period, and considering the very unusual and unreasonable proviso for annual extensions, and their disadvantages of ignorance and inexperience, we would have been disposed upon this ground alone, regardless of the question of the validity of the contract presented by the record, to withhold the remedy of specific performance. This remedy will be denied, even though the plaintiff was free from any intention to take an unfair advantage, if the actual result is an inequality, resulting from old age, mental weakness, poverty, ignorance, inexperience, sex, etc., or where the terms of the contract are so indefinite, or assented to with such lack of caution, that the enforcement of the contract would produce an inequality not foreseen by the defendant. 6 Pom. Eq. Jur. (Ed. 1905) 785.

This brings us to the consideration of the pivotal question in this case, viz., the validity or invalidity of the contract. It is claimed by the defendants that the provision of the contract, "and said Starcher Brothers may have this option and agreement so extended from year to year upon the payment of said sum annually as aforesaid," and which provision by the terms of the contract is made to "extend and apply to the heirs, assigns, executors and administrators of both of the parties hereto," creates such a present right to an interest in the land which may arise at a period beyond the legal limit, as to bring the contract within the rule against perpetuities, and that the contract is therefore absolutely void and unenforceable, at law or in equity, at any period of its existence. On the other hand, the plaintiffs insist, in the first place, that Duty and wife, by accepting the second payment of $10 paid into bank to their credit prior to April 5, 1904, thereby estopped themselves from asserting that the contract was to run only for two years; second, that it is permitted to the owner by contract to suspend his right of disposition of his property only so it shall not offend against the law of perpetuities, and that, to bring the contract within this rule, the alienation must be restrained for the entire period of the life of the owner and 21 years and a fraction thereafter, and which they claim is not the legal effect of the contract. The authorities relied on in support of this theory are Lowther Oil Co. v. Guffey, 52 W. Va. 88, 43 S. E. 101; Rease v. Kittle, 56 W. Va. 269, 49 S. E. 150; Brush v. Beecher, 110 Mich. 597, 68 N. W. 420, 64 Am. St. Rep. 373; and other like cases relating to contracts for the perpetual renewal of leases. It is claimed that this contract partakes of the nature of such lease contracts. The answer to this argument, however, is that leases of land like those considered in the authorities cited create vested estates in the lessees, and the covenant for perpetual renewal is one which runs with the land, without any restraint upon the right of alienation by the lessor of his prop

erty subject to the lease, and hence the authorities relied on are inapplicable. Gray's Rule Against Perp. § 230.

The best definition of a "perpetuity," and the one most generally adopted by the courts and text-writers, is that of Mr. Lewis (Lewis on Perpetuities, 164), which is as follows: "A future limitation, whether executory or by way of remainder, and either of real or personal property, which is not to vest until after the expiration of or will not necessarily vest within the period fixed and prescribed by the law for the creation of future interests, and which is not destructible by the persons for the time being entitled to the property subject to the future limitation." Hogg's Eq. Pr. § 554. Chief Justice Gibson, in Hillyard v. Miller, 10 Pa. 334, says: "A perfect definition of a 'perpetuity' has not been given, and the nearest approach to it is found in Lewis on Perpetuities." Mr. Gray (Rule Against Perp. §§ 329, 330), on the authority of the leading case of London & S. W. R. Co. v. Gomm, 20 Ch. D. 562, says: "Whenever a contract raises an equitable right in property which the obligee can enforce in chancery by a decree for specific performance, such equitable right is subject to the rule against perpetuities." The English case cited by Gray is particularly applicable, for in the deed from a raflroad company the grantee covenanted with the grantor that he, his heirs and assigns, would at any time, on receipt of £100, reconvey the land to the company. The grantee subsequently sold and conveyed the property, and the railroad company subsequently sued the then owner for a specific execution of this contract. Kay, J., who decided the case below, while regarding the rule against perpetuities, did not think it applicable to that case, because in his opinion the contract did not create any estate or interest, properly so called, in the property, nor contain any covenant running with the land nor binding on the purchaser. On appeal, however, Jessell, M. R., with whom Sir James Hannon and Lindley, L. J., concurred, and reversing the decree below, held that the option to purchase gave an equitable interest which was within the rule against perpetuities, and that, judged by that rule, it was void. The court said Justice Kay was in error in thinking that the contract did not create any interest in land. See Gray's Rule, § 485.

The mere fact that a contingent interest may be released by the persons in being, and that a good title may thus be made, is not enough to take the case out of the rule. Winsor v. Mills, 157 Mass. 362, 32 N. E. 352. This rule against perpetuities is aimed not only against restraints on the alienation of present interests, but is also directed against the creation of future interests in property. 21 Eng. Rul. Cases, 159, note; Gray's Rule, c. 7. Unless, therefore, we can read into this contract some terms of limitation requiring the optionees to exercise the right to take the property within some reasonable time, not too

remote, it is clearly within the rule, and must be declared void. To attempt this would be to make a new contract for the parties, for they have provided that the option may be extended annually to an indefinite period, and may be to a time beyond which the rule against perpetuities will not allow. The contract therefore is illegal, and was void from its very inception, and everything done by either of the parties designed to carry the contract into effect which is auxiliary thereto must be considered as unauthorized and inoperative. Fosdick V. Fosdick, 6 Allen (Mass.) 48.

Such being the law of the contract, we hold that it was void and unenforceable from the beginning, and that it was given no vitality by payments made and received for annually extending it.

We therefore affirm the decree of the court below, with costs to the appellees.

(61 W. Va. 371)

STARCHER BROS. v. DUTY et al. (Supreme Court of Appeals of West Virginia. Feb. 19, 1907.)

1. PERPETUITIES-SUSPENSION OF ALIENATION -REAL PROPERTY.

An option contract for the purchase of land, providing for its extension for a second year on payment of a stipulated sum by the optionees, and containing a provision that the optionees "may have this option and agreement extended upon the payment of said sum annually as aforesaid," and extending its provisions to the heirs, assigns, executors, and administrators of both parties, is void by the rule against perpetuities.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Perpetuities, §§ 46, 47.]

2. COURTS - RULES OF DECISION DECISION.

PREVIOUS

The points adjudicated and the principles announced in the case of Starcher Bros. v. Jeff Duty and Others (decided at this term) 56 S. E. 524, apply to this case.

(Syllabus by the Court.)

Appeal from Circuit Court, Lincoln County. Action by Starcher Bros. against J. F. Duty and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Chas. E. Hogg and Walter Pendleton, for appellants. Wyatt & Graham, for appellees.

MILLER, J. This case is ruled by the same principles, and is controlled by substantially the same state of facts, as are involved in the case of the same plaintiffs against Jeff Duty and others, decided at the present term of court. 56 S. E. 524. The suit is by the same plaintiffs against J. F. Duty and others, brought to specifically execute an option contract for the purchase of a tract of land belonging to J. F. Duty in Lincoln county, containing 200 acres, and was made and partially executed on the same day the plaintiffs made their contract with Jeff Duty, a brother of J. F. Duty.

The evidence shows that the contract was prepared by one Bee, upon printed blanks

provided by the plaintiffs. It was first signed by Clarinda, the wife of J. F. Duty, but with the understanding that it was not to be delivered until the contract was seen and read to her husband, J. F. Duty. J. F. Duty and his brother, Jeff Duty, were together when they agreed upon the terms of the option contracts they were to execute to the plaintiffs. When Bee, the agent of the plaintiffs, subsequently saw J. F. Duty to procure his signature and acknowledgment to the contract, and the contract was read to him, he refused to sign it, for the reason that it gave to the plaintiffs the right to purchase the property after two years from its date. The contract, as originally prepared, contained the same clause as was contained in the contract of Jeff Duty, namely: "And said Starcher Brothers may have this option and agreement so extended from year to year upon the payment of said sum annually as aforesaid." When the contract with this provision was read to J. F. Duty, he objected to it. Finally, after seeing C. W. Starcher, a member of the firm of Starcher Bros., the words "from year to year" were stricken out of the contract, leaving the provision read: "And said Starcher Brothers may have this option and agreement extended upon the payment of said sum annually as aforesaid." And it was explained to Duty by Starcher that the contract, as thus amended, gave Starcher Bros. the option to purchase only for the period of two years.

The plaintiffs did not elect to take the land within the first year, nor within the second year after its date. They paid to J. F. Duty the stipulated sum on or before the 5th day of April, 1903, in order to extend the contract for the period of another year, and on or before the 5th day of April, 1904, they deposited to Duty's credit in the Huntington National Bank the stipulated sum for the purpose of extending the contract for the period of another year; but Duty refused to accept this money, claiming that the option had expired on the 5th day of April, 1904. The plaintiffs, in their bill in this case, notwithstanding the modification made in the contract by striking out the words "from year to year," claim that the effect of the contract as modified and executed was to give them, their heirs, assigns, executors, and administrators, the right of annual renewals for an indefinite period, and, having made payment into bank prior to April, 1904, the contract was thereby extended to April 5, 1905, and, having given notice to J. F. Duty in March, 1905, of their purpose to take the land under the terms of the contract, they are entitled to specific execution thereof. The other facts relied upon by the parties are substantially the same as those in the case of the same plaintiffs against Jeff Duty and others. The pleadings are substantially the same. The testimony of the same witnesses was taken in support of the respective contentions of the parties.

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