138 S.E. 449 | W. Va. | 1927
Plaintiff, a general real estate agent, sued the defendant Laing for specific execution of a contract of sale and purchase *735 of two certain lots of ground, parts of lots Nos. 19 and 20 in the village of Barboursville, Cabell county, then belonging to Mrs. Lena Burgess, to whom on April 3, 1924, she had given the sole right for thirty (30) days to advertise and sell said property, at the price of seven thousand dollars ($7,000.00) net to her, in the terms stipulated, and bound herself thereby to deliver to plaintiff or to whomsoever he might designate a proper deed of conveyance.
On the same day, April 3, 1924, plaintiff entered into a contract with defendant, which (omitting the description of the lot) is as follows:
"Barboursville, W. Va., April 3, 1924.
"F. A. Bowden, Agent,
Barboursville, W. Va.
"I agree to purchase the following described property for which you are agent as described below.
Beginning at * * * being the westerly 22 feet of lot nineteen and the easterly 26 feet of lot twenty of said Village of Barboursville.
For which I agree to pay eight thousand dollars ($8,000.00) on the following terms and conditions.
Twenty-five hundred ($2500.00) cash and two interest bearing promissory, negotiable notes of twenty-seven hundred and fifty dollars ($2750.00) each due and payable on one and two years from date, with the privilege of paying off one or both notes at any time, said notes to be secured by vendor's lien upon the above described property.
I agree to pay taxes assessed against said property for the year 1924 twenty-five dollars cash herewith paid to apply on cash payment.
It is understood and agreed that papers and considerations are to be executed and passed within thirty days from this date.
Signed, T. K. Laing Accepted, F. A. Bowden."
By the amended and supplemental bills, to which the owner of said lot, Lena Burgess, and H. G. Burgess, her husband, were made defendants, the facts respecting the making of said contract between plaintiff and the defendant Lena Burgess *736 and H. G. Burgess, and between plaintiff and the defendant T. K. Laing, were fully set forth and pleaded.
And it was also further alleged that plaintiff, at the time of entering into the contract with defendant Laing, and at the time of the institution of this suit, and at the present time, had and has an interest in said contract or agreement, and in the property therein and herein described, in this: That the owners of said property at the time aforesaid, for a valuable consideration, by an apt and proper contract under seal, granted to him the sole right to advertise and sell said premises at the price of seven thousand dollars ($7,000.00), and agreed to deliver to him, or to whomsoever he might direct, a proper deed of conveyance containing covenants of general warranty; that under and by virtue of the terms of said agreement of April 3, 1924, the defendant Laing agreed to purchase from complainant said lots for the sum of $8,000.00, as set forth in said agreement, whereby plaintiff is entitled to a profit of one thousand dollars ($1,000.00), and therefore has a valid and pecuniary interest in said contract of sale and in the enforcement thereof.
It is further alleged that on or about the first day of May, 1924, and within thirty days of the date of said contract, complainant notified defendant Laing in person that he was ready and willing to convey or have conveyed by the proper parties to him the said property, but that defendant requested an extension of a few days in which to think over and investigate the matter, and that a few days thereafter complainant again notified defendant Laing that he was ready and willing to comply with said agreement of April 3, 1924, and then tendered to him a good, apt and proper deed from the parties owning the fee simple title to said property, conveying the same with covenants of general warranty, free and clear of all encumbrances, to the defendant, nevertheless defendant failed and refused to accept the same, and to make the cash payment and execute the notes, as provided in said contract of April 3, 1924. *737
Wherefore, plaintiff sues and tenders to defendant the deed so executed, and prays that he be compelled to execute the contract in accordance with the terms thereof.
Defendant Laing in his answer undertakes in a general way to put in issue, not the fact of the contract as alleged in the bill, but the fact of compliance therewith by plaintiff as to making or causing to be made and tendered to him a good and sufficient deed as required, and within the time prescribed by the contract, in support of which denial respondent alleges that a few days before the expiration of said thirty days defendant, responding to the call of plaintiff, did meet him in the office of his attorney, when and where he was notified by the latter that they had had the title abstracted and that there was a break in the chain of title, wherefore respondent determined that Mrs. Burgess, who claimed said property, did not in fact have good and sufficient title thereto, and that the same was charged on the land books to persons other than said claimant, wherefore respondent notified plaintiff and his counsel that he did not want the property and would not accept it, the title not being marketable, and he would not be able on that account to obtain a loan thereon for the purpose of improving the same, as intended when proposing to purchase it; and that neither the said plaintiff nor the said Burgess, the owner thereof, made any attempt to correct the defect in said title, and that if compelled to accept said property with such defect, he would sustain great financial loss and damage. He further answered that plaintiff had failed and refused to provide a complete abstract of title as agreed, and that for this breach of his contract he was not entitled to specific execution.
The defendants Lena Burgess and H. G. Burgess, not made parties to the original bill, but on demurrer thereto were brought in on the amended and supplemental bills; the demurrers for other grounds were properly overruled to the amended and supplemental bills. The principal ground of demurrer was that plaintiff, being agent for the Burgesses, was without right to maintain suit for specific execution in his own name; that such suit, if maintainable, could be prosecuted *738
only in the name of the principals, and not in the name of the agent, though the principals were not named in the contract and were not disclosed at the time of entering into the contract. This is the first point of error relied on for reversal of the decree. While the general rule no doubt is, as contended for by the defendant, that the principal only may maintain suit for specific performance, affirmed in principle in Jones v. Hart'sEx'rs, 1 Hen. M. 470-471; Tavenner v. Barrett,
As another ground of defense and relief against the decree of specific performance, it is urged that because of lack of mutuality in the contract plaintiff should have been denied specific performance. The contract sued on was made between Bowden, Agent, which was descriptive, Hyman v. Swint,
A further ground of error relied on is that the tender of performance by the plaintiff was not made within the thirty *740 days required by the contract pleaded. Time, by its terms, was not made of the essence of the contract. The only provision in the contract relied on is: "It is understood and agreed that the papers and considerations are to be executed and passed within thirty days from this date." It is conceded that before May 3rd following the date of the contract, Bowden notified Laing of his readiness and willingness to execute the contract, and requested Laing to meet him, which he did, at his lawyer's office, and where he tendered performance, if defendant was ready and willing to execute the contract on his part, and when defendant requested time, which was allowed him, for a few days for further consideration and investigation. And plaintiff shows that after waiting a few days, he made a new tender of performance and demand of execution on defendant; and thereafter the bill was filed, and with their answer the deed of Burgess and wife was tendered and filed in escrow. In such a case time is not regarded as of the essence of the contract, and such delay will not bar specific performance.Rollyson v. Bourn, supra; Tavenner v. Barrett, supra; 4 Pomeroy Eq. Jur. p. 3341, § 1408.
Another ground assigned for reversal of the decree is that because of the alleged defect of title it was wrong and inequitable to decree specific performance. The contract does not call for anything beyond the implied covenants of general warranty and a marketable or legally good title. There is no express or implied contract for a title without break in chain back to the commonwealth, nor one without incumbrances, if only the incumbrances are dischargeable out of the purchase money.Armstrong v. Maryland Coal Co., supra. A marketable title is one that is free from reasonable objection to a purchaser.Summers v. Hively,
Some questions were made in brief of defendant's counsel, and in the record, with reference to a suit in Lewis county affecting the title to the westerly 22 feet of lot No. 19, but we understand from the stipulation of counsel on the record, that all questions about the sufficiency of title to that lot are withdrawn.
The break in the chain of title most relied on occurred between 1819 and 1889. One Harshbarger, an old resident of Cabell county, son of David Harshbarger, testified that his father purchased lot No. 20 from one John Hatfield in 1868, '69 or '70, by taking an assignment of a title bond from one Connor, the witness being then ten or twelve years old, and that his father was then in possession of said lot from that year until sold to one Bloom in 1888 or 1889; that his father was not able to get a deed from Connor because he was dead and his heirs were unknown; that upon another portion of the same lot the Methodist Episcopal Church, South, of Barboursville, had constructed a church costing $60,000.00 to $65,000.00. Besides, the evidence in this case shows that upon the particular lot in question here a hotel had been built and occupied for many years adversely by persons under whom the Burgesses derived their title, and taxes paid continuously without break at least as far as the year 1890, by E. W. Blume from 1890 to 1913, and by his successors, including Lena Burgess, to 1924. There can not be the slightest doubt about the title to said lots existing in Mrs. Burgess, notwithstanding the supposed break in the chain of title of prior years. The unbroken possession of Mrs. Burgess and her predecessors has cured any and all defects *742 in the title pointed out by counsel. Sections 3 and 4 of chapter 104 of the Code, and section 3 of article 13 of the Constitution, even as against infants, had wiped out all possible defects, or omissions urged as defects, in title justifying defendant's excuse for not executing his contract. We need not go into a dissertation on these statutory and constitutional propositions.
Lastly, it is complained that the decree was given in favor of Mrs. Lena Burgess, a co-defendant, without pleading or prayer for relief as between them, instead of in favor of the plaintiff according to approved practice and the provisions of section 35, chapter 125 of the Code, and as declared inGoff v. Price,
This is a case, we think, which calls for specific performance within the principles laid down in Conaway v.Sweeney,
Affirmed. *743