117 Va. 490 | Va. | 1915
delivered the opinion of the court.
This suit was brought by W. P. Atkinson to enforce the specific performance of a contract whereby, as he alleges, Mrs. Scenia Ann Yeatts agreed to sell to him 98 acres of land. The decree of the circuit court awarded the relief prayed for, and this appeal is brought by G. W. East, who has succeeded to the rights and liabilities of Mrs. Yeatts under the alleged contract.
The following are the essential facts: In August, 1905,, Atkinson contracted with John Hodnett, his father-in-law, for the purchase of about 154 acres of land, of which the 98 acres here involved is a part. He gave Hodnett his bond, effective January 1, 1906, for $796.00, the amount of the purchase price, was placed in possession, moved into the dwelling house on the land, and has resided there ever since. He was a man of small means and bought the place for a home. By deed of November 28, 1906, Hodnett, in furtherance of an understanding between Atkinson and Mrs. Yeatts, conveyed to the latter the said 154 acres for a consideration of $839.78 in cash, the amount of Atkinson’s bond to Hodnett with its accumulated interest. It was understood when this conveyance was made that Mrs.Yeatts would cut off and sell to Atkinson the said 98 acres at the price of $519.21, payable in annual instalments of $100.00 each with interest. Accordingly, G. W. East, acting for his aunt, Mrs. Yeatts, procured a survey and plat of the 98 acres and also prepared a bond for $519.21, which was dated March 11, 1907, and executed by Atkinson to Mrs. Yeatts. This bond showed on its face that it was for the purchase price of the 98 acres, referred to the survey and plat aforesaid, and recited that payment was to be made at the rate of $100.00 a year with interest, until discharged. The dwelling then occupied by Atkinson was situated on the 98 acres and he has remained in exclusive pos
We do not find it necessary to pass on either of these contentions, because, waiving them, and conceding that the contract was not sufficiently evidenced by writing, and that the statute was adequately insisted upon, we think the decree complained of properly directed the specific performance of the agreement.
The contract was entirely certain, definite and clear in its terms; Atkinson was in possession when the contract was made and continued in exclusive possession until this suit was brought; this possession was admittedly held under the contract made with Mrs. Yeatts; the improvements were not costly or extensive, worth at most not over $300, but they were directly referable to and in pursuance of the contract, and, viewed in the light of the value of the land, the plaintiff’s means and station in life, and the fact that he was trying to convert the property into a permanent home, they were of substantial and peculiar value.
The case on behalf of the appellee, as it appears in the record before us, meets all the requirements of the rule established in Virginia for compelling the specific execution of a partly performed verbal contract for the sale of land.
“From the numerous decisions on the subject the following principles may be extracted and briefly stated as follows : 1st. The parol agreement relied on must be certain
The fact that Atkinson had not paid the instalments of purchase money as they became due does not, under the other facts of this case, constitute a valid defense to the bill. The plain terms of the contract and the conduct and dealings of the parties preclude any claim that time was of the essence of the contract. Neither Mrs. Yeatts nor G. W. East ever made any demand upon Atkinson for the principal of the bond, and, when on March 25, 1912, East undertook to declare the contract forfeited for non-payment of the purchase money, he did so without giving Atkinson the reasonable notice to which he was entitled under the law. Under these circumstances East had no right to declare the contract forfeited, and is not entitled to anything more than interest as the measure of his damage for the delay in the payment of the purchase money. Booten v. Scheffer, 21 Gratt. (62 Va.) 491; Smith v. Profit, 82 Va. 832-849, 1 S. E. 67; Bethel, &c. Co. v. Salem Imp. Co., 93 Va. 354-359, 25 S. E. 304, 33 L. R. A. 602, 57 Am St. Rep. 808; Secombe v. Steel, 61 U. S. (20 How.) 94-104 (15 Law Ed. 833-836) ; Pomeroy on Contracts, sec. 393.
The decree of the circuit court was right and will be affirmed.
Affirmed.