26 Gratt. 305 | Va. | 1875
delivered the opinion of the court.
Every bill for the specific execution of a contract is an application to the sound discretion of the court. It is not a case requiring the interposition of the court ex debito justitice, but rests in their discretion upon all the circumstances. He who seeks the exercise of this extraordinary jurisdiction must show a contract certain and definite in its terms: that he himself is in no default, but has performed his part of the agreement; or in the language of the judges, that he is “ready, desirous, prompt and eager” to do so. If the contract is conditional it must be shown that the conditions have been complied with. "When the condition is subsequent and becomes impossible of performance, equity will sometimes relieve upon compensation being made. But the courts never dispense with
The rule laid down by an eminent writer and supported by abundant authority, is, that when the substance of the agreement can be fully executed, and when a trifling adjustment only is needed to satisfy the equities of the case performance may be decreed with satisfaction. If, however, the default of the plaintiff goes to the substance of the agreement, or if there be some things which he is bound to do and cannot do, or has not done, and the court cannot compel him to do it, equity will not decree specific execution in his favor. 8 Parsons on Contracts 402, 407-'8; Harvey v. Banks, 1 Rand. 408; Pigg v. Corder, 12 Leigh 69.
These principles, as will be seen, have a direct application to the present controversy. Admitting for the present the existence of a valid contract between Enoch Cox and Joseph Cox, it is not denied that it was a conditional contract. By the express terms of the agreement Joseph Cox was to have the land upon condition that he supported Enoch Cox and wife during their respective lives. These were the terms imposed by the father and accepted by the son. The courts have no power to change them or to substitute others in their place. If it be conceded that Joseph Cox furnished the necessary support down to the year 1868, it is very clear that he failed to do so after that year, although Enoch Cox lived until 1867, nearly five years longer. Mrs. Haney Cox the wife, for whose benefit the pension was made equally with that of the husband, was alive when this suit was brought, and is
It is said, however, that the family of Joseph Cox, after he went into the army and even after his death, were willing and ready to render the necessary support; but they were prevented by Enoch Cox and his wife. At the time of Joseph Cox’s death, in 1865, he had six children, the eldest about fourteen and the youngest about five years of age. It is impossible to believe that this boy of fourteen and his widowed mother, besides taking care of four small children, could have sustained the burden of furnishing a support for this infirm and aged couple. The proposition is too extravagant to be entertained for a moment. Indeed the case as presented by the record, is that of a father promising his son to make a devise in his favor upon certain conditions which have never been complied with. This court is asked to dispense with these conditions, although they constitute the substance of the contract. It is to be remembered that Joseph Cox was never under any obligation to furnish
Thus far the ease has been considered as if there was a valid contract between the parties. It may be doubted, however, whether this contract, or supposed contract, amounts to more than a voluntary promise, an inchoate gift, on the part of Enoch Cox the father. Ho writings were ever executed. The understanding,
This court has repeatedly expressed its disapprobation of those .pretended contracts based upon declarations by parents of intentions to make certain specific provision for children, in consideration of supposed services rendered or sacrifices made by the latter. Such promises are generally made in the freedom and
I do not deem it necessary further to consider or. discuss the evidence upon this point, as all of us agree it is insufficient to warrant a decree for specific execution. The only question is whether the complainants are entitled to a decree for compensation.
It is in proof that about ten acres of the land were cleared and enclosed by Joseph Cox; some inferior buildings erected by him, and some additions made to those already built. All the work done by him was for his own benefit, and was such as a tenant from .year to year paying rent might have done without compensation. Joseph Cox was in the enjoyment of the farm for fifteen years without rent; he used without restraint his father’s teams in cultivating the land, and it is no exaggeration to say that for every expense he incurred in improvements, or in the support of the father and mother, he was fully remunerated by the rents and profits. This fact is established by complainant’s own witnesses. It seems also that since the death of Joseph Cox, Enoch Cox has conveyed to the widow and children fifty acres, part of the land in controversy. To this tract the buildings erected by Joseph Cox have been removed, and are now in the possession of the family. This would seem to be conclusive upon the question of compensation. Upon the whole, in any view we may take of the case, it would seem that the decree of the Circuit court is clearly ■correct and must be affirmed.
Decree affirmed.