¶1(dissenting) :
¶2Sampson Snyder was owner of a number of tracts of land in Randolph county, in all about three, thousand sis hundred acres, and became financially embarrassed, and in a chancery suit his lands were decreed to be sold for debts amounting to upward of $16,000. They were sold under the decree to Robert Liskey, John TV . Liskey and TV. H. Rickard, for $16,660, and the sale was confirmed. On the day of the sale, 23d January, 1899, the two Liskeys, Rickard and Snyder entered into a sealed contract by which said Liskeys and Rickard sold to Snyder the same lands for $19,660, and expense of the vendors in travel from Harrisonburg, Virginia, to Beverly, and attorney fees for examining titles. Snyder paid no money down, but gave his bonds for the purchase money payable at different dates in fu--fcure. Said contract provided that on failure of payment Sny■der should surrender possession of the lands. On 6th October, 1899, an agreement under seal was made between the Liskeys, Rickard and Snyder which recited that the Liskeys and Rickard had purchased the lands at the judicial sale, and that Snyder by said contract of 23d January,'1899, had the privilege to redeem the lands by payment of large sums set out in that contract; and that Snyder had found it impossible to raise the money to meet any of the installments payable under that contract, and that in consideration of one dollar paid, and the further consideration that the Liskeys and Rickard surrender to Snyder all bonds executed bj him for purchase money under the contract of 23d Janua^r, 1899, and also surrender a deed of trust upon some personal property and two lots in the village of Harmon, given by both Sampson Snyder and his son John Snyder to further secure payment of the purchase money required by said contract, the said Sampson Snyder released all right •and title to said lands, and all claims and demands against said .Liskeys and Rickard or said land growing out of any transaction *643■whatever, and no party to said agreement should thereafter have any claim or demand against another growing out of said transaction of 23d January, 1899. On the same date with this release agreement, 6th October, 1899, a written lease of said lands by Liskej^s and Rickard to Sampson Snyder was made, by which the Liskeys and Rickard let said lands to Snyder for one year, the consideration stated being that Snyder was to pay $600 as balance due on rent for the past year, and $1,200 rent for, the yeaT ensuing. Afterward said parties made another written lease, by which the land was leased to Snyder for another term ending 1st March, 1901, for $425. On 20th’ December, 1899, D. C. Reherd purchased from the Liskeys an interest in the lands. In March, 1901, Robert Liskey, John W. Liskey, William Rickard and D. C. Reherd filed their biH in chancery against Sampson Snyder stating the above facts, and the further facts that Suyder was yet in possession, refusing to surrender it to the plaintiff; that he failed to pay the balance of rent; that a large part of the land was in sod valuable for grazing; another part in fallow, which should be tilled and put in grass; another in a large orchard bearing yearly 3,000 or 4,000 bushels of apples; and another part in merchantable timber of great value; that Snyder was holding possession in order to secure the benefit of the grass, meadow land, the fruit and crops from the fallow land, and to cut, remove and market the timber on the lands, and then had a saw mill on the land and was actively engaged in sawing the merchantable timber and selling it; that unless restrained he would use crops, grass and fruit, and sell the timber, to the irreparable injury of the plaintiffs. The bill alleged Snyder to be insolvent. The bill prayed an injunction against cutting timber and manufacturing it into lumber and removing it, or cultivating and pasturing the land, taking fruit, and for general relief. Snyder filed an answer setting up that he had applied to the Liskeys and Rick-ard for a loan to discharge the decree against his lands, and that he made an arrangement with them whereby they were to lend him a sum sufficient to pay the decree, the loan to be secured by a lien on the land, and they were to be present at the sale under the decree and bring with them an attorney to advise as to the safety of the loan, Snyder to pay traveling expenses and fee of attorney. That pursuant to this arrangement the land *644was knocked clown at the sale to liskeys and Rickard, and the-sale was confirmed after the execution of an agreement showingthat the purchase was for his benefit, and he was to hate the lands on repayment of said purchase money, with interest and traveling expenses of the purchasers and their attorney from Harrisonburg, and his fee. .The answer stated that Snjrder had given the Liskeys and Rickard his bonds not only for $16,.600,. the price they purchased the land for under the decree, but also-$3,000 bonus required by them upon the loan, in addition' to-interest, traveling expenses and attorney’s fee. The answer charged that Liskeys and Rickard had purchased for the benefits of Snyder at the judicial sale, and they were not in fact the-purchasers, but merely the agents and trustees of Snyder, ancT took by the judicial sale no title against Snyder except as an equitable mortgage for the money paid by the purchasers and' interest. The answer stated that relying upon their promises he did enter into the contract of 23d January, 1899, by which he repurchased the lands of Liskeys and Rickard, and gave bonds-for $19,660. It denied that Snyder abandoned his purchase under that contract or admitted his inability to pay the money required by it, but that on the contrary the timber alone would pay it. It further charged that the Liskeys and Rickard came to-his home and requested him to give them, a-statement by which they could more effectually raise money to carry on business, and that they would stand by the sale contract between them,, and allow him time to pay, and did 'not want his property, but that the state of things impaired their credit in certain business enterprises, and therefore they wanted a statement from him showing that they were owners of the lands, and presented and asked him to sign a writing prepared by them, which he did not fully consider and understand, and that as they informed him that the paper was not intended to have, and would not have, any effect upon his ownership, he signed it, the same paper or release mentioned above, dated 6th October, 1899. The answer stated that the two leases of the land were only given to-strengthen the credit of the Liskeys and Rickard, and not to operate as a relinquishment of his right to the land. The answer prayed that upon payment to the plaintiffs of the sum legally due to them, they be required to convey to him the said lands. Upon the hearing a decree was entered for the plaintiff perpet*645uating the injunction, granting a recovery of the lands by the plaintiffs and awarding them a writ of possession, and Snyder ■.appeals.
¶3Snyder rests his case upon the theory that the Liskeys and Rickard bought in the land for his benefit at the judicial sale, and that he is thus entitled to have the land upon principles found in numerous cases. Currence v. Ward, 43 W. Va. 367; Walraven, v. Lock, 2 Pat & Heath, 547; Heiskell v. Powell, 23 W. Va. 717. Though it is the theory of Snyder that the purchase .at the judicial sale was in fact for his benefit, his purchase, yet I do not regard even his answer, and more plainly }et his own • evidence, as showing that. They show that the contract was that Liskeys and Rickard were to purchase and then sell the land as ■their own property to Snyder. Snyder could not buy. They were no relation to him, under no call to come hundreds of miles .simply to buy in the property for him without profit to themselves.- That theory does not bear the face of plausibility. It was a serious thing for them to make this trip and make them.selves personalty liable for $16,660 for nothing. I do not know that this trust purchase theory is material, in view of the release .agreement of 6th October, 1899, and the leases; but if we can say that at the birth of the transation, in the judicial sale, there was no trust, it goes to dissipate Snyder’s claim based on a trust. If it did not exist then, when did it arise? If a trust existed, and was not afterward released, it would deny the plaintiffs ■the so-called bonus of $3,000 in fixing the amount due. But as ■stated, a fair interpretation of facts stated in the answer and in Snyder’s evidence is that there was no arrangement to buy in the land for Snyder’s use. That such is the truth is plainly ■shown, not only by the evidence of Liskey and Rickard, but by a letter from Rickard to Snyder telling him that he had seen ■some parties in his behalf, and that if his property was worth ■what Snyder represented and his debts not over $15,000, those parties would buy the property at $15,000, and then sell it to Snyder on time, but would not lend, and that he would have to pay $3,000 more, and traveling expenses and attorney’s fee for investigating' title. This shows that the sale was not to be in Trust for Snyder, and that he accepted the proposition with eyes open to this fact. Will a court of equity make it another contract, a mere loan, in the face of this? Of course, the letter of *646the record for the sale is against such trust purchase. Then on the very day of the sale a formal contract is signed by Snyder declaring that the Liskeys and Rickard purchased under that sale, and had sold the land to Snyder. Snyder says as a witness-that that contract was agreed to before the sale, that arrangement as to the sale. It was no purchase for Snyder. The parties declined to loan or indorse or act in any other form than as-purchasers, with absolute rights as such, and he knew it, and let them purchase on that faith. He says that owing to this arrangement he deterred others froip buying, when others would' have bought at a higher price. This proves nothing; Would others have sold to'him and indulged him? Would the land have sold for more? It had been twice before offered for sale,, the best bids being at one sale $10,000, at another $13,000, and then an ujoset bid of $15,000. This does not show, but negatives,, that Snyder could have done better. It negatives inadequacy of price, or any deductions or claims based on that theory,, though that cuts no figure in the case. How, how can Snyder,, in. the face of all these things, in the face of his written admission in that contract that those parties were the purchasers, deny that fact and say they were purchasers in trust? If sor if that were the truth, we should expect a paper so stating and giving him, in so important a matter, involving his all, a right' to simply repay and get his land back? He was about 58 years-of age, entirely capable of contracting. True, he was an unfortunate debtor, in hard circumstances, like thousands before and since, and our mere sjnnpathy goes out to him in his ,distress^ but we can not for that relieve him. True, we may say that $3,000 profit was large; but any man has right to drive a good bargain. He urged and begged those people, by letter aftér letter, to come to his relief; did so when the sale was at his very, door, and they evinced no eagerness, and he knew* their, terms- and accepted them. Could he get any body to do better for him? It does not so appear, and- if he could have done so, it would be immaterial. These purchasers came far, took upon-themselves a large debt, bought land far from them, sold it to a man well advanced in years, without a dollar paid down. Lis-key and Rickard on oath utterly deny that they purchased for Snyder, and solemn papers under hand and seal support them. I have said this much, not because I do not think that if sucb *647trust purchase really existed, it was released by Snyder afterward, but to show that there was not such trust at the beginning of this transaction, and thus no superstructure can be reared upon it.
¶4Time passed, and the date of payment for the first installment of purchase money under that contract Game, and found Snyder unable to meet it. If he could not raise one-third, how could he raise the balance ? The land was involved, and a very large amount, perhaps all of the personal property and two village lots of himself and son also. A large debt was growing and might not be paid by the property. He made a contract by which, in consideration of a release of the debt and the personal property and lots he surrendered his purchase under the contract of 23d January, 1899, By that contract Snyder and wife released “all their rights and titles to said above described property, also all claims and demands against said first parties or said property as growing out of any transaction whatsoever and neither party hereto shall have any claim or demand against the other as growing out of the transaction of January 23d, 1899.” Does not this drown and extinguish any trust in the judicial sale? Or in the contract of sale? Or any right in the whole' transaction ? His first contract promised to surrender the land for non-payment. If not, can people contract at all? Not only that contract, but on the same day Snyder made a lease of the land, and thus became tenant; not only that, but he made a second lease for another term; not only that, but he paid a large amount of rent as tenant. Thus he confirmed that deed of release. No fraud is. shown in it. If there were, it is waived by the second lease at later date, and rent. How is it possible for Snyder to deny the effect of these plain things? Do any writings bind? Does any contract? Snyder says that this release was not to affect his prior ownership. This he says in the teeth of that writing, sealed with Ms seal; it wgs a release, and rescission and yet no release, or rescission. So the maker of a note once said that the understanding was that he was not to be bound; but the Court said that he could not prove that underestanding against a plain note. Towner v. Lucas, 13 Grat. 705. Same principle Martin v. Railroad, 48 W. Va. 542; Hukill v. Guffey, 37 W. Va. 426; Long v. Perine, 41 Id. 314; Miller v. Fletcher, 27 Grat. 403. It is not pretended that the execution of this release created a silent mortgage, so as to ad*648mit oral evidence under that principle; it is simply asserted that’ it was agreed that it should not release.and impair, when itself in its words does that very thing. If the dangerous doctrine of allowing oral evidence to destroy writings can go thus far, then away with the vaunted superiority of written over oral evidence of men’s acts, and the rule that oral evidence can not contradict writings. The courts should narrow, not widen, the door allowing such evidence. This practice has largely repealed the statute of frauds. In these days of general education and facilities of making writings there is less need of such a practice than long ago.
¶5In this connection we may say that it is an easy matter to assert a trust for land; but the law stops in with no uncertain trea'd and says that “parol evidence to establish a trust must be clear and unquestionable.” Armstrong v. Bailey, 43 W. Va. 778. The whole case as put by Snyder in his answer and evidence bears the hue of unplausibility, and is contradicted by his action and the documents. But it is said that these parties occupying the relation of trustees and beneficiary, they could not thus deal with each other. The point is void of any plausibility. Their relation, if it existerd, was not a fiduciary relation of the character to appfy that rule, as in case of express trusteeship.
¶6This case is uncontrollably governed by documentary evidence of absolute and certain import, and the oral evidence is therefore unimportant; but if this were not so, a conclusive reason why we should affirm the decree is that the oral evidence is squarely, flatly conflicting, and involves credibility of the witnesses. There is but little law involved, but the case turns on facts, and documents bring in the solvent facts. So far as oral evidence does merit consideration, I will state what is worn and trite, that this Court cannot reverse the lower court when the evidence is contradictory and the credia'bility of witnesses is involved. Camden v. Dewing, 47 W. Va. 315.
¶7It is assigned for error that the court perpetuated the injunction and gave the plaintiffs a recovery of the land and a writ of possession. If it is meant that equity has no jurisdiction for injunction at all, the point can not be sustained. View Snyder as a tenant committing waste, equity has clear jurisdiction for injunction to stop waste. That late excellent work, American *649Eng. Dccis. Eq.; in yoL 2, pp. 660, 668, says that the old common law remedies are now superseded, and that “an injunction will therefore issue to restrain any act of waste by a tenant in possession, whenever the threatened acts amount to a manifest injury, to the inheritance and are a wanton abuse of the tenant’s rights.” “The remedy by injunction is so peculiarly adapted to the redress of injuries which constitute waste, that it has supplanted to a large extent the remedies at law.” 28 Am. & Eng. Ency. Law, 922; 2 Tajdor, Landl. & Ten. sec-? tion 691.
¶8Insolvency is not requisite in case of a tenant committing waste. Viewed not as tenant, which he was, but as a trespasser, injunction lies, Snyder being insolvent, as shown by the whole record, and the damage in cutting and selling large quantities ■of timber entailing large damage. Becker v. McGraw, 48 W. Va. 539. On the theory disclosed by the answer, that of mort.gage, the injunction was proper and could not be dissolved. Bell v. Core, 20 W. Va. 169. But I suppose the assignment does not mean to question jurisdiction in the inception of the case, 'but only in perpetuating the injunction and granting recovery of the land and a writ of possession at the end of the case. ‘The case being one of a tenant guilty of waste, it was surely right to perpetuate the injunction without trial at law. University. v. Tucker, 31 W. Va. 621. So if the case were as Snyder contended, one of vendor and vendee, or equitable mortgage . and the mortgagor doing irreparable injury, as the evidence ■ clearly shows that Snyder was cutting and sawing with a mill a large amount of timber. But did the court err in giving a recovery of the land and a writ of possession? Viewing the case as that of the tenant refusing possession after term expired, of course, there is no equity merely for the recovery of possession; 'but as the court had clear jurisdiction for -vaste, and the bill ■ alleged both waste and unlawful detainer, could not the Court go on to give full relief by delivery of possession under the ■rule that equity having jurisdiction for one purpose, will give complete relief on the merits and end the litigation, and not turn the parties loose for another law suit? Hotchkiss v. Fitzgerald, 41 W. Va. 357. But this action of the court does not ■rest alone on the consideration just stated. The bill set forth ■.the plaintiffs’ title to the land, and the defendant’s tenancy *650and detainer and' waste; the answer of Snyder came in setting up bis claim under the alleged trust, presented his facts to sustain that defence, justified his detainer of possession under that claim, and as upon a cross bill asked the court to adjudicate his-right to the land, and to compel the plaintiff to execute the trust by conveyance of the land to Snyder on payment of the debt. Now, why should not equity, having jurisdiction on the bill, as just stated, and jurisdiction upon the cross-bill of the matters-therein stated in defence" of the bill, give final decision upon the rights of the parties, and finding that the defendant had no-right, give the plaintiffs their property? Note that this is not, like Freer v. Davis, decided this term, a contest between two-distinct titles adverse from their origin, but a question of which of the litigants was entitled to the one only title and the land under it. It is a case where the question is one of equitable, right, equitable mortgage which can be adjudicated only in. equity. The Court adjudicated against this equitable title, and why should not the Court give recovery and possession to the-legal right instead of sending it to a law court to get recovery? The Court, if it decided, had to pass on the respective rights,, and ought to have power to effectuate its decision.