REED, V. C.
Bill to compel specific performance, brought by Abram English against Schuyler Rainear and another. Decree rendered.
Peter Backes. for complainant.
R. S. Gaskill, for defendant.
Schuyler Rainear. Howard Flanders, for defendant Samuel Rainear.
REED, V. C. This is a suit to compel Schuyler Rainear and Samuel Rainear to convey certain property to Abram English upon the payment by Mr. English of a certain sum due by Mr. English to one Martin C. Ribsam. The facts are substantially these: Schuyler Rainear held a mortgage upon a farm which was the old homestead of Mr. English's family. He began a suit to foreclose his mortgage. Abram English was anxious to save the farm. He had had some dealings with Martin C. Ribsam, and owed Ribsam about $100. He applied to Mr. Ribsam to help him keep the farm. Mr. Ribsam consented to do so if Mr. Rainear could be persuaded to take a new mortgage for $2,000 upon the farm. Messrs. Ribsam and English saw Mr. Rainear, who consented, if his interest was paid up, and Mr. Ribsam would take the title to the farm, to leave $2,000 upon it, to be secured by bond and mortgage thereon, to be executed by Mr. Ribsam. Under this arrangement, Mr. Ribsam bought the farm at the sale under the decree made in Rainear's foreclosure suit, took the deed from the sheriff, paid the interest due upon the mortgage and the costs of the suit, and executed a mortgage to Schuyler Rainear. His payments, together with the amount English owed him, and the $2,000 mortgage made to Rainear. amounted, altogether, as I understand the testimony, to $2,845. At the time Mr. Ribsam took the deed, he entered into a written agreement with Mr. English. This agreement was dated June 21, 1899. By the terms of this agreement, Ribsam covenanted to sell the farm to Abram English, upon demand made before the 1st day of January. 1903, for $2,845, to be paid by the assumption of the mortgage debt of $2,000 made to Rainear, and the balance in cash, and upon the payment of all moneys which Ribsam may have expended in improvements, or for interest and taxes and insurance premiums, together with interest upon the money paid for improvements in carrying on farm operations. English was to have possession of the farm, and conduct it, paying all interest upon the mortgage and all taxes against the property. English was to pay $425 on account of the purchase money on or beforethe 1st day of January, 1902, and was to pay the balance on or before the 1st day of January, 1903. English covenanted to make these payments, and it was agreed that if default was made in any payment of interest, taxes, or on account of the purchase price, and said payment should be in default for 30 days, Ribsam could rescind the agreement and enter upon the premises, and English was to forfeit all payments made. Mr. English went into possession of the farm upon the execution of this agreement. The first year, Mr. Ribsam says, English paid the taxes and interest, but was behind in his account, but Mr. Ribsam gave him a chance for another year. At the end of the second year he was behind in his interest and taxes. Mr. Ribsam says he told English at that time that, if Mr. Rainear was satisfied, he (Ribsam) was willing to try him another year. A few days thereafter Mr. Rainear demanded his interest due upon the mortgage; and Mr. Ribsam says he then told English that, if his old neighbor and friend (meaning Rainear) would not stand by him better than that, he did not see why he (Ribsam), a stranger, should stand by him any better. He says he told English to go back and tell Rainear that he (Ribsam) would sell the place, and whatever profit there was, he would divide. Ribsam paid the interest to Rainear on January 9, 1902. By an arrangement between English, Rainear, and Ribsam, the latter conveyed the property on January 13, 1902, to Rainear, for the sum of $2,750. This amount represented what English then owed Ribsam, together with the $2,000 secured by the Rainear mortgage.
It is apparent from the testimony that Mr. Ribsam bought in this property at the foreclosure sale as trustee for Mr. English. It is equally apparent that he took the title in his own name to secure himself the amount which he had advanced to Mr. English. Ribsam held the title as mortgagee, and Mr. English went into possession as mortgagor. The agreement between Ribsam and English contained a covenant by English, as already remarked, to pay the amount secured by the deed. Upon the face of the agreement, therefore, there existed a debt, for the security of which, title was held by Ribsam. This displayed that the relation between Ribsam and English was that of mortgagee and mortgagor. Now, Schuyler Rainear knew the circumstances which led to the purchase of the property by Ribsam at the foreclosure sale, and I have no doubt that he read the agreement, which was for a time in his possession; nor do I doubt that at the time of the sale to him by Ribsam, and at other times, he led both Ribsam and English to suppose that he was helping English, and that English would have the right to redeem. In my judgment, he took the property subject to all the rights which English held against Ribsam. But the right of another party was intervened. On May 30, 1902, Schuyler Rainear sold, of the 116.48 acres which he had bought of Ribsam, 103.81 acres to his brother, Samuel Rainear, for $3,633. Samuel Rainear on September 23, 1902, began an action of ejectment against English to recover possession of this tract. The bill charges that he bought with notice of the agreement between Ribsam and English. The defendant seeks to enjoin this action of ejectment, and prays that, upon payment by English of the amount due under agreement with Ribsam, the two Rainears may be ordered to reconvey the property to him. It is claimed by counsel of Samuel Rainear that he stands in the attitude of a bona fide purchaser for value, and, as such, is entitled to hold the land he bought, free from any equity which may have existed against Ribsam or Schuyler Rainear. There is one fact, however, which destroys the force of this insistence, and that fact is that English was in open and notorious possession of the farm at the time Samuel Rainear made his purchase. So far as appears, he made no inquiries of English respecting his interest in the premises. The title not having come through English, Samuel Rainear is chargeable with all the information which he would have obtained had he made such inquiries. Stew. Dig. p. 902.
I shall advise a decree permitting English to redeem upon payment of the amount which Schuyler Rainear paid to Ribsam, which was as, I understand it, the amount which English owed Ribsam, together with the interest, within 60 days after decree is signed, and that, upon the failure of English to make such payment within that time, the bill shall be dismissed.