112 Va. 92 | Va. | 1911
delivered the opinion of the court.
The bill in this case was filed by the appellee, C. A. Hyde, to have rescinded a contract entered into on August 30, 1906, between the appellants, W. C. East and wife, and himself, by the terms of which the appellants agreed to deliver to the appellee on the 1st day of February, 1907, a “warranty deed” to a tract of land in Amelia county, containing nineteen hundred and eighty-eight and one-half acres, together with an abstract of title showing the land to be “free and clear” in the appellants. The agreed price of the land was $13,400, of which $1,000 was paid in cash, $1,500 by negotiable note which was subsequently paid and the residue $10,900 was to be paid on the 1st day of February, 1907, when the deed was delivered, at which time the possession was to be given to the appellee. The ground of rescission was that the appellants had not performed their contract and were unable to do so.
The appellants filed an answer and cross-bill, asking for the reformation and specific performance of the contract. The circuit court denied the relief asked by the appellants in their cross-bill, and rescinded the contract in accordance with the prayer of the original bill, ordering the cash payment of $2,500 made by the appellee to be refunded. From that decree this appeal has been taken.
The petition assigns as error the action of the circuit court in sustaining the demurrer of the appellee to the appellants’ cross-bill.
It is sufficient to say with respect to this assignment of error, that the record has been searched in vain for any
This controversy has grown out of the fact that at the time the contract of August 30,1906, was entered into, there was, unknowm to the appellee, an outstanding timber contract or lease upon the land bought by him, under which the owners of that lease had the right to cut and remove timber from the premises until the May following the date of the contract. When the appellee and the appellant, together with several others, went upon the land to inspect it, some days prior to entering into the contract, it was apparent that saw-mills had been at work in the timber, and that a large quantity had been cut and removed, though no timber was being sawed or cut at that time. There was, however, remaining upon the land a considerable quantity of valuable timber, and this fact was repeatedly urged upon the appellee by the appellant as an important inducement to the purchase he was contemplating, representing that the remaining timber was worth from three to four thousand dollars. It is shown by those present on this occasion, that no mention was then made by the appellant of this
The appellant insists that the written contract of August 30, 1906, should be reformed so as to make it provide that the purchase therein agreed upon was subject to the outstanding timber contract. It is urged in support of this contention that the appellee knew of the timber lease, and that he executed the contract buying the land in the light of that knowledge; that the real contract was that appellee’s purchase was to be subject to the existing rights under the timber lease, and that by mistake this provision was omitted from the written memorial. It- is neither alleged nor proven that there was a failure to exclude the timber from the written contract by innocent omission and under a mutual mistake, or that there was a mistake on the part of appellant accompanied by fraud or other inequitable conduct on the part of the appellee. The contract is com
A vast amount of evidence has been taken in this case, most of which is wholly irrelevant and sheds no light upon the real issue involved. The important and established facts are that the appellee bought from the appellant a tract of land, under written contract, which entitled him to a fee simple deed, free from encumbrance. This contract on his part he was ready and anxious to carry out, but was prevented from doing so by the failure of the appellant to perform his contract to deliver an unencumbered title. The appellee has done nothing to impair or waive his rights, and has been guilty of no laches in asserting them. The appellant has wholly failed to sustain the charges of his cross-bill, while the allegations of the original bill have been sufficiently established to entitle the appellee to the relief prayed for by him.
The decree appealed from must, therefore, be affirmed.
Affirmed.