Annotation-Remedies of parties under a contract for the sale of an article on approval.

machine on approval is to render the | McMillan v. Jaeger Mfg. Co. (1916) 177 doctrine of caveat emptor inapplicable, and such a contract does not have the effect of precluding the buyer from rescinding the sale for the fraud of the seller. Hackney Mfg. Co. v. Celum (1916) Tex. Civ. App., 189 S. W. 988.

The sale of a machine subject to trial, "terms cash," is conditional, and the buyer is not bound to accept and pay for the property unless it does the work for which it was purchased. Buckeye Traction Ditcher Co. v. Smith (1912) 158 Iowa, 104, 138 N. W. 817. However, the use by the buyer of a machine after the time fixed for its return should he reject it is evidence of acceptance, although within such time he objected to the way the machine operated. Ibid.

Iowa, 599, 159 N. W. 208. The foregoing case holds that under a contract for the sale of a smokeless furnace, and providing that the seller would allow the buyer thirty days' trial, and if it did not prevent smoke to the satisfaction of the smoke department of a designated city the seller would remove it without cost to the buyer, it was a condition precedent to the right of the seller to recover the purchase price to show that the furnace had been approved of by such smoke inspector.

TULLY, ante, 870, which, in effect, applies the same doctrine.

Where there is no limit of time in which the buyer was to try out a machine sold on approval, it has been held that if he never accepted the machine and the seller never limited the time for the trial, the continued use of the maAnd it has been held that, under a sale chine for nearly two years did not conon approval within a designated time, stitute an acceptance. James Bradford time is of the essence of the right to re- Co. v. United Leather Co. (Del.) supra. turn the article and, unless waived by Ordinarily where a machine is sold on the seller, this right must be exercised trial without limit as to the time of trial, within the time designated or it is lost. the seller, after the lapse of a reasonSouthwestern Portland Cement Co. v. O. able time for trial, may treat the furD. Havard Co. (1913) Tex. Civ. App. ther retention of the article as evidence -, 155 S. W. 656. And it is the general of acceptance and sue for the price. rule that the failure to return the prop-Ibid. And see F. O. EVANS PIANO Co. v. erty or to give notice in accordance with the contract of sale makes absolute a sale on approval. James Bradford Co. v. United Leather Co. (1915) - Del. Ch. —, 97 Atl. 620 (citing note in 50 L.R.A. | (N.S.) 808). For example, where a contract of sale provides for the rejection of the article sold by delivering it in good order to the consignor f. o. b. at a certain point, if the buyer desires to reject the article he must comply with the contract in this regard; and by refusing to do this, and retaining the article until he was paid the amount he has advanced for freight, he renders himself liable for the purchase price. Berlin Mach. Works v. Midland Coal & Lumber Co. (1912) 45 Mont. 390, 123 Pac. 396.

Where one day or less would have been sufficient to test an article sold on approval, its use for over twenty days constitutes an acceptance. Hiltgen v. Viever (1916) 162 Wis. 315, 156 N. W. 132. But where the seller was to remove the subject-matter of the sale if it was not accepted after trial, and the buyer notified the seller to remove it, the subsequent use of the article, rendered necessary in order to operate the seller's factory, did not, as a matter of law, constitute an acceptance of the article, acceptance under these circumstances being a question for the jury.

Where by a contract for the sale of an article, the buyer is to have the privilege of trying the article for a stated period, and if he is not satisfied the seller is to remove it, it is the duty of the buyer to give the article a trial. He cannot reject it on the ground that similar articles have been tried by others similarly situated and rejected, and this is true although the trial would involve expense on the part of the buyer. Louisville Trust Co. v. Bayer Steam Soot Blower Co. (1915) 166 Ky. 744, 179 S. W. 1034. Under a contract of this character, the buyer has a right to reject the article within a reasonable time if no particular time is specified, and he may do so by notifying the seller of his intention in this regard. He need not return or offer to return the article unless required to do so by the express terms of the contract. Henley-Waite Music Co. v. Grannis (1913) 171 Mo. App. 392, 157 S. W. 817.

The fact that the purchaser of goods on trial, to be sold at retail, placed the goods on sale and was unable to sell them because of defects therein, does not estop him from returning the goods under a provision in the contract that if the goods are not satisfactory they may be returned. Cohn-Goodman Co. V.

Mandelson (1913) 94 Neb. 47, 142 N. W. | time, in his attempts to make the article

COURT | 244, 76 S. E. 301; Dickenson v. Ramsey, 115
Va. 521, 79 S. E. 1025.

The payment of taxes on land by an adverse claimant will not protect other titles from forfeiture. Each claimant must enter

ROBERT HENSLEY et al., Plffs. in Err. the land and pay the taxes on it in his own

saves forfeiture to the state of the title of another claimant who has not paid taxes, where both claimants derive and claim title from the same person as a common source.

State v. West Branch Lumber Co. 64 W. Va. 673, 63 S. E. 372; Chilton v. White, 72 W. Va. 546, 78 S. E. 1048; State v. Garnett, 66 W. Va. 113, 66 S. E. 98; State v. Allen, 65 W. Va. 339, 64 S. E. 140; State v. Low, 46 W. Va. 451, 33 S. E. 271.

A deed, a writing signed, sealed, and delivered, conveys title, and need not be either acknowledged or recorded for the purpose of completing the conveyance of title. Devlin, Real Estate, 3d ed. pp. 10, 817, §§ 5, 465.

A purchaser of lands is charged with notice of a prior unrecorded deed if the exercise of ordinary prudence and caution would have led him to knowledge; and possession, open and visible, is notice to subsequent purchasers of a prior unrecorded deed held by the occupant.

2 Jones, Real Prop. §§ 1563, 1564; Western Min. & Mfg. Co. v. Peytona Cannel Coal Co. 8 W. Va. 409; Devlin, Real Estate, § 760; Morrison v. Kelly, 22 Ill. 610, 74 Am. Dec. 169; Maupin v. Emmons, 47 Mo. 307; Groff v. Ramsey, 19 Minn. 44, Gil. 24; Galley v. Ward, 60 N. H. 331; Lumbard v. Abbey, 73 Ill. 177; Niles v. Cooper, 98 Minn. | 39, 13 L.R.A. (N.S.) 50, 107 N. W. 744; Nuttall v. McVey, 63 W. Va. 380, 60 S. E. 251; Minor, Real Prop. § 1413.

passing upon the sufficiency of the testimony offered to establish this conveyance we will treat all of the evidence introduced as competent.

In considering the evidence introduced upon this subject we must not lose sight of the principles of law which govern in cases where it is sought to substitute for a deed parol evidence of its prior existence. The spirit of our law is that title to land shall pass only by deed or will, and where it is sought to set up title under a lost deed, the evidence of the execution of such deed, of the contents thereof, and of its delivery, must be clear and convincing, approaching in dignity the conclusiveness of a written instrument. This rule has been laid down and adhered to by this court and the supreme court of appeals of Virginia without exception, and we think it is a rule based upon sound considerations of public policy. The opportunities for the perpetration of fraud in establishing titles by proof of lost instruments would be so great, unless the rule was thus strictly enforced, that uncertainty of land tenures would result, and the mischief thus produced would be very much greater than any injustice which may follow from the application of such a rigid rule. In the case of Telluric Co. v. Bramer, 76 W. Va. 185, 85 S. E. 177, it was sought to establish title to the oil and gas in a tract of land by proof of a lost deed. In that case one of the grantors in the deed, the other being dead, testified to the execution of the

Ritz, J., delivered the opinion of the deed; that it had been signed and acknowl

court:

edged by himself and his cograntor; that it Defendants complain of the judgment of conveyed a one-half interest in the oil and the circuit court of Cabell county in an gas in a particular tract of land. In adaction of ejectment by which the plaintiff dition to this, certain memoranda made by recovered a tract of land containing some- the grantee at the time of the transaction thing more than 700 acres, situate in Logan were introduced, showing that he had made county, West Virginia. It is admitted that such a purchase as that indicated by the this tract of land is a part of a large tract oral testimony of the grantor. It was held, owned by John Dempsey in his lifetime, and however, that the evidence was insufficient that the defendant United States Coal & Oil to establish a lost deed. The evidence of the Company is the owner of this Dempsey land grantor upon which reliance was had was unless Dempsey before his death conveyed given twenty years after the purported exeaway the parcel involved in this suit. The cution of the paper. He was a very old plaintiff claims under a deed executed to man, past the age of ninety years, and the him by William Lucas and wife, dated the court held that his evidence was insufficient 25th day of November, 1911, and under a to establish a lost paper rising to the conveyance alleged to have been made by dignity of a muniment of title. In the case John Dempsey in the year 1864, to William of Board v. Callihan, 33 W. Va. 209, 10 S. Lucas; which conveyance, it is alleged, was E. 382, it was sought to recover upon a lost destroyed without having been recorded. bond. It will be observed that the paper The defendants insist that the evidence in- sought to be established in that case by troduced to establish this conveyance is not parol evidence did not require in its exesufficient for that purpose. It is conceded cution the formality and certainty of a that unless this conveyance is established deed; it did not pass title to land, but was the plaintiff must fail. Many exceptions simply evidence of an obligation on the part were taken to the admissibility of evidence, of the one executing it to the payee. In and to the competency of witnesses intro- | that case three witnesses testified as to the duced during the trial of the case, but in existence of the bond sued on. The first

testified that he saw the bond two years after the purported date of its execution; that he read it carefully at that time; that it provided for the payment of $1,500 with interest from its date; that it bound the heirs and executors of the obligor; and that it was payable to the plaintiff. This witness was eighty years old at the time he gave this testimony, and it was shown that he was not familiar with obligations of this kind and did not recollect ever having seen any other obligation of the same kind. It will be observed that this witness did not testify that he had seen the obligor sign the bond. The testimony of the second witness was substantially the same as that of the first. He saw the bond two years after the purported date of its execution, and he gives its contents substantially as given by the årst witness. The third witness, however, was present at the time of the execution of the bond; he saw it delivered by the obligor to the obligee; he read it at that time; tells what was in it, and specifically gives its provisions. It was shown that all of these witnesses were more or less interested in establishing this obligation; that a long time had elapsed; and because of these facts, as well as because of the strict rule enforced in establishing lost writings by parol evidence, it was held that the bond was not established, and no recovery was allowed. Other decisions passing upon this question and laying down the rule as above stated are: Barley v. Byrd, 95 Va. 316, 28 S. E. 329; Carter v. Wood, 103 Va. 68, 48 S. E. 553; Smith v. Lurty, 108 Va. 799, 62 S. E. 789; Johnson v. McCoy, 112 Va. 580, 72 S. E. 123; McLin v. Richmond, 114 Va. 244, 76 S. E. 301; Thomas v. Ribble, 2 Va. Dec. 321, 24 S. E. 241; Dunnavant v. Dunnavant, 120 Va. 301, 91 S. E. 138.

Fillinger; that her child was ill and they sent for Dr. Hugh Bryant to attend the sick child; that while they were there John Dempsey, the owner of the land, came in; that in the course of the conversation he asked Lucas why he did not go back on the farm to reside; that it was his, and that he ought to go back and take care of it; that Lucas replied that he did not care to go back there under the uncertain conditions that then existed; that he had no title to the land; that Dempsey had told him repeatedly that he was going to make him a deed to the land, but that he had never done so, and that he did not intend to go back until he had some written assurance that he was the owner of the land; that Dempsey thereupon said: "I will make you a deed for it right now;" that paper was produced; that Dr. Bryant, who was also a justice of the peace, wrote the deed; that it was read over by Dr. Bryant in the presence of the witness, was executed by Dempsey and acknowledged before Dr. Bryant as a justice of the peace, and delivered to Lucas; that subsequently, when the weather abated somewhat, Dempsey sent his own teams to Fillinger's house and removed William Lucas and his family on to the tract of land, and that William Lucas resided on the same continuously until the time of his death in 1912, and that his son George Lucas, the plaintiff, has occupied it ever since that time; that this deed was kept by the witness in an old trunk; that some time in the latter 70's the house was destroyed by fire in the absence of the family from home, or the adult members of the family, and the trunk destroyed with the house; that after the destruction of the house some of the neighbors gathered together with a view of assisting Lucas in constructing a new house in which to live; that John Dempsey was among the number of such persons; that Lucas stated that he thought he had just as well leave at that time while he had nothing to leave; that his

that he should build another house upon the land; that Dempsey thereupon advised him that he would execute to him another deed, conveying the property; that this promise of Dempsey was never carried out; that just before Dempsey's death he advised the witness and her husband that if they would come to his house on a certain Monday

In this case there is but one witness who claims to have seen Dempsey execute this deed. This is the mother of the plaintiff. At the time she testified she was eighty-four years of age. She states that she could neither read nor write. Her evidence is, indeed was burned up, and he did not know effect, that about the year 1860 she married William Lucas; that before she was married Dempsey told her that William Lucas was his natural son, and that he was going to make provision for him out of his estate; that when they were married they moved into a little cabin upon the tract of land in controversy, and remained there for a few years; that during the Civil War her hus-morning he would have an officer there, and band was away part of the time, and during that time they removed from this cabin; that after her husband returned from the war, in 1864, they were moving back from Peck's Mills, where the family had stayed, and, being overtaken by a storm, stopped at the residence of a man by the name of

would execute the deed and deliver it to them; that they went at the time appointed, but that Dempsey died the night before and the deed was never executed. This was about the year 1881.

Philip C. Doss, a son-in-law of William Lucas, testified that he saw this deed when