76 Va. 404 | Va. | 1882
delivered the opinion of the court.
This is the case of a bill filed by a married woman in conjunction with her husband and her trustee to enforce specific performance of a contract for the sale of her separate real estate. One of the grounds on which the purchaser resisted the execution. of the contract was, that neither the wife, nor husband, nor trustee, nor any nor all of them combined, could make a good title to the property contracted to be sold; in other words, that the property was settled to the separate use of the wife without the power of alienation. The court below sustained that view, and upon that ground, and that only, as shown by the recitals of the decree and the opinion filed with it, dismissed the bill.
We have no doubt whatever that Mrs. Gray, in conjunc
The fourteenth paragraph of the will under which Mrs* Gray derives title, directs the property given and devised to her to be held by a guardian or trustee to be appointed by the court until she arrives at the age of twenty-one year’s or mandes, and upon her marriage to be settled to her separate use, and that the trustee named in the will shall execute and declare for record such trust in reference to the property given as may be necessary to carry out the wishes of the testator in the premises. The directions as to the appointment of the trustee by the court and the declaration of trust on record were duly complied with.
Now, this paragraph is the only part of the will relating to the trust, and it very plaizily gives a separate estate without restriction on the power of alienation. It is conceded that negative words are not indispensable to impose restraint on the power. The intention to limit it may be implied, but, as has been often said, it must be clear. There is absolutely nothing in the paragraph referred to, or in the context, or indeed in any part of the will, from which such intention can be dedzzced. In the creation of
The cases decided by this court bearing on this question are too familiar to require citation or comment from the bench. For the distinction to be taken between a case like the present and Bank of Greensboro’ v. Chambers and others, 30 Gratt. 202, and Ropp v. Minor and others, 33 Gratt. 97, we refer to what is said in the opinion delivered a few days ago in Bain and Brother v. Buff’s Adm’r and others, ante p. 371.
If, therefore, the alleged inability of the vendors to make good title had been the only objection to a decree for specific performance, we should have been of opinion that the court erród in dismissing the bill. But there was another ground of defence relied on by the purchaser. The sale was by public auction, after advertisement, written or printed, signed by the wife, her husband, and her trustee.
These averments of the answer are clearly established by the proof. The uncontradicted testimony of the witnesses is full, distinct, and directly to the point. Assuming that the oral evidence by which these facts were established was admissible, we are of opinion that Lipscombe cannot be required, against his will, to complete the purchase. The public announcement by the auctioneer, the agent of the vendors, was an essential term in the offer to sell, and it was accepted as such by the purchaser. It is immaterial that this court now considers that the vendors were and are able to make good title. That is not the question. The contract left it to the purchaser to determine for himself the matter of title. If, on examination, he was not in good faith satisfied with the title, he was not to be bound. The bargain was at end. His counsel made the examination and advised against the title, and acting on that advice he declined the purchase, and the court below, in the reasons given for its decree, in effect sanctions the advice given.
The written memorandum of the contract, signed by the auctioneer, does not contain the stipulation relied on as a condition, and the oral evidence adduced to establish it is excepted to on the ground that it varies the writing. We think snch evidence is competent, when offered, as in the present case, by the defendant in a suit for specific performance, to show that the writing fails to express the real agreement.
The application for relief in such a suit is always addressed to the sound discretion of the court, and the contract as written will not be enforced, against the will of the defendant, where he can make it appear that from accident, mistake, inadvertence, fraud, or like circumstance, it does not fairly and truly express the agreement of the parties in any essential particular; and he is allowed to shew this by parol evidence. This principle would seem to apply with peculiar force, where the only written evidence of the contract is a brief memorandum made out and signed by the auctioneer in the absence of the purchaser. The omission by him to add the condition, which is an essential term of the agreement, whether such omission
Though the reasons assigned by the hustings court for its decree are not approved, yet the bill, for the reasons given by us, was properly dismissed, and the decree will be affirmed.
In the view taken by us, the case might have been disposed of here without considering the question raised as to the power of Mrs. Gray over her separate estate. Counsel, however, desired the opinion of the court on that question, and it seemed to us proper that it should be given.
Decree affirmed.