116 Va. 39 | Va. | 1914
delivered the opinion of the court.
The original bill in this case, filed by the appellee, E. B. Broaddus, administrator of the estate of Sarah S. Alsop, deceased, against the appellant, T. E. Campbell, alleged that the defendant had tortiously and illegally taken possession of all the personal property of the decedent and converted it to his own use; that plaintiff, as administrator, had brought an action of trover against the defendant to recover damages for the illegal seizure of the assets, which action was then pending on the law side of the court; that plaintiff was unable to properly describe the specific articles of personal property in the possession of the defendant, or to prove their value without an appraisal: and that the defendant had denied the appraisers access to the property. The bill prayed that the defendant might be enjoined from interfering with the appraisers in, the discharge of their duties and also from disposing of the property, and that he be required to give bond for its production to answer such judgment as might be rendered against him in the action at law.
Depositions were taken to sustain the allegations of the cross-bill, and from a decree dissolving an injunction theretofore awarded respondent (but without prejudice to his right to recover damages at law, if any he had sustained, on account of his contract) and dismissing the original bill and cross-bill at his costs, this appeal was granted.
In outline, the salient facts are these: Mrs. Alsop was a widow and had no living child, and at the date of the contract was sixty-four years old. During the lifetime of her husband they lived on his home farm in Spotsylvania county. After his .death, which occurred about twenty years before the commencement of this litigation, dower, including the mansion house, was assigned her •in the farm, and she continued to live there until her death, which occurred on September 30, 1911. Her entire estate consisted of the dower interest in the farm
In his reply of July 10, 1910, appellant says: “Note that you want me to move you. as soon as I can. There is a house here that you can move into at any time, but it would not hold a fourth of your furniture. I have a good two-story house at the grist-mill, but it has a tenant in it for this year, but I will give him moving orders for another year, and if you want me to put this in good order I will do so and move you into that. ’ ’ These letters were followed by the contract of July 26, 1910, which after reciting that Mrs. Alsop had sold her dower interest in the Alsop estate and would have to surrender possession during that year, and would either have to buy another place, or board with some one or live with some of her relatives or friends; and since her nephew, T. E. Campbell, had no house on his place suitable for her to go into and have a home with him, it was mutually agreed between them that they would build a house at his old home place and occupy the same together; that he would build the house as soon as possible, he supplying the lumber and she agreeing to furnish $300 at that time and $100 later on, if needed, that being the estimated cost of the woodwork. The cost of bricks or the brick work would constitute an extra charge. The object of the contract was declared to be to show the good faith of the parties, and what each was to contribute toward the building. As further evidence of Campbell’s good faith in carrying out his agreement to build the house, he gave Mrs. Alsop his note for the $300 then advanced, and for the further sum of $100.00, if the same should be needed and had to be paid, as a guaranty in case he should die before the house was
“Now.it is further agreed by Mrs. Sallie B. Alsop . that her nephew T. R. Campbell . . has shown by previous acts and evidences of his love and esteem for her, and also shown by this instrument of writing that he has her welfare and individual interest at stake, and has further shown heretofore that of all her Idnspeople he is the only one that has cared anything for her, or has taken any interest in her, in the event that she should die before he did, she will give to him for the above and other considerations all her property and personal effects. It is hereby agreed . . that the said T. R. Campbell can have the use of her furniture, etc., provided he will come up and move same, which he agrees to do. ’ ’
It will be 'observed that the considerations which moved Mrs. Alsop to enter into this contract were not confined to the stipulations on the part of Campbell to unite with her in building the house, and-to support and maintain her during his life and charging his estate with her support after his death. The contract also recites, “for other considerations,” and in the light of the evidence it cannot be doubted that she classed among these “other considerations,” -his uniform love and affection and generous contributions to her support covering years of her widowhood, which ministrations continued to the date of the contract.
After the sale of her dower, an arrangement was made with the tenant of the purchaser that she should con
The circuit court treated the case as a suit for specific performance of the contract, and denied relief to appellant on the sole ground that his tardiness in building the house had deprived Mrs. Alsop of the eniovment of “anv of the things she had contracted for.” This view, as it seems to us, obscures the real issue in the case. Before this litigation arose—nay. even before the qualification of appellee as administrator, the case had passed the stage which called for affirmative action on the part of appellant, and by the stipulations of the contract the subject-matter of the litigation had reached its ultimate, destination. Therefore, the controlling question, in light of all the facts, was whether or not a court of equity should declare a forfeiture of appellant’s rights under a contract which was self-executing at Mrs. Alsop’s death-, so far as investing him with title to the
In the absence of bad faith a court of equity is never astute to search for ground of forfeiture. Nor can anv authority be found for rescinding a contract for mere delay in performance when the party in interest has. ad interim, accepted substitutionary performance. 2 Elliott on Contracts, sec. 1654; 3 Elliott on Contracts, secs. 1858, 1866. See note to Harris v. Murphy, 56 Am. St. Rep. 656, treating the general subject of modification, etc., of written contracts by subsenuent parol agreement—That in equity the rule applies to covenants or contracts under seal as well as to other written instruments. see p. 670.
In Turner v. Citizens Bank, 111 Va. 184, 192. 68 S. E. 407, 409 the court, at p. 19, quotes approvingly from
The court in that case met the insistence of the administrator to have certain assets of his decedent turned over to him for administration by holding, that “A court of equity with all parties before it, and having control of a fund the ultimate destination of which is plainly in sight, will decree the fund to the parties ultimately entitled thereto, and will not relinquish the administration of the fund on the theory that it is an asset of an estate to the administration of which a personal representative before the court is exclusively entitled.”
If it had been made to appear that there were creditors of the estate of Mrs. Alsop who were entitled to priority over appellant with respect to the property, the court might well have treated him as an executor de sen tort. and required him to discharge such liabilities out of the assets. But, as we have seen, the estate was not indebted, and appellant’s title to the property and the possession thereof ought to have been sustained.
For these reasons we are of opinion that the decree of the circuit court must be reversed, and this court will enter a decree in accordance with the views expressed herein.
Reversed.