77 Va. 397 | Va. | 1883
delivered the opinion of the court.
On the 11th day of January, 1860, ah agreement was made and entered into between Edward L. Wright, Ann E. Clarke, and John L. Boughton, of the county of Essex, for the exchange among the said three parties of three tracts of land situated in the said county, upon terms therein set out. This agreement is in the following language: “ That whereas an exchange of lands has been this day made between said Wright and said Clarke and John- L. Boughton, thus, said Wright contracts to sell to said Clarke, Poplar Grove estate in Essex county, Virginia, and to make to her a good title for same, free from all incumbrance, for fourteen thousand dollars, the deed to be made so soon as said Wright can get a title from the executor of Thomas Wright, Sr., deceased, and to indemnify said Clarke in the meantime by bond and good security, said Clarke to make to said Boughton a deed of general warranty for Millers, containing five hundred and fifty acres, the land to be surveyed, if said Boughton desires it, the excess to be paid for if it exceed five hundred and fifty acres, and the deficiency to be made good if it falls short, at the rate of ten thousand dollars for five hundred and fifty acres, ten thousand dollars being the price agreed on to be paid by said Boughton for Millers, and said Boughton to make to said Wright a deed for Lammermoor, granting such title as he has in and to it, in consideration of said Clarke’s grant to said Boughton, of Millers, which said Wright agrees to take in lieu of ten thousand dollars toward the payment for Poplar Grove. Said Clarke to execute her
“ Witness the following signatures and seals.
“Edw’d L. Wright, [Seal.]
“'Ann R. Clarke, [Seal.]
“John L.'Boughton, [Seal.]
“ Witness—
“Th. Croxton.”
Under this contract all the parties thereto took immediate possession of the respective farms as agreed on between them. The said Edward L. Wright died in the year 1860, before he had made the deed to Mrs. Clarke for Poplar Grove ; and on the 10th day of October, 1867, the said John L. Boughton and Ann R. Clarke brought their suit in chancery in the circuit court of Essex county against John J. Wright, administrator of Edward
On the 18th November, 1867, a decree was entered in the cause, directing one of the commissioners of the court to take an account of the unpaid purchase money for Poplar Grove, and leave given the plaintiffs to file an amended bill to make new parties; and on the 13th of January, 1868, an amended bill was filed in the cause, making the distributees of the estate of Thomas Wright, Sr., parties to the suit, and asking the sale of Lammermoor to pay to the estate of the elder Wright the balance due for Poplar Grove, and that the agreement hereinbefore set forth be decreed to be specifically performed.
On the 19th of February, 1868, the commissioner reported to the court the balance due from Edward Wright’s estate to the estate of Thomas Wright, Sr., for the purchase of Poplar Grove to be $2,796.75, with interest from the 15th day of December, .1859. On the 1st day of May, 1868, a decree was entered upon “the said commissioner’s report decreeing specific execution of the ■contract of January 11, 1860, and decreeing a sale of the Lammermoor tract to pay the' balance due by the estate of Edward D. Wright for the purchase of the Poplar Grove tract, and ■appointing commissioners to make the sale. The consent of the ■adult parties was, however, required before the sale was to be made. On the 27th day of August, 1869, another decree was made for the sale of Lammermoor peremptory in its terms unless the amount due for Poplar Grove should be paid within ninety days. On the 16th day of November, 1870, another decree was entered directing commissioners named therein to sell the Lammermoor tract. On the 14th of November, 1871, a decree was entered directing the sale of Poplar Grove to pay the balance due on it for the purchase money to the estate of the elder Wright, and the same commissioner appears to be named in all these decrees for sale of the said tracts of land. The same decree
On the third day of November, 1877, an order was entered rescinding so much of the decree of November 14th, 1871, as consolidated the two causes; and on the sixth day of November, 1878, a decree was entered, declaring that the agreement of January 11th, 1860, was not capable of specific execution, because the same had been defeated by the sale-of Poplar Grove, as ordered by the decree of November 14th, 1871, in the suit of Wright, &c. v. Wright, to satisfy the lien thereon for the purchase money due the estate of the elder Wright, which sale had been confirmed at that term of the court, and that the object of the suit had been frustrated; that the agreement of January 11th, I860,- could not, therefore, be specifically performed, and all the decrees entered for the sale of Lammermoor were rescinded. And Ann E. Clarke was given leave to file her amended and supplemental hill. And on the 18th of March, 1879, Ann E. Clarke did file her amended bill in the cause, setting'forth the matter of her 'first bill, and that Poplar Grove had been sold to one Derieux, for $2,756.25, and that the said purchaser now had possession of Poplar Grove. That Millers had been sold by the district court of the United States for the eastern district of Virginia for the debts of Boughton, and that J. T. Eerry, and J. D. Hutchinson had purchased and now had possession of it, but that they had not just claim to it, but must assert their claim against Lammermoor; that she had a claim against Wright’s estate for $4,000 she had paid Wright for Poplar Grove, in excess of Millers; that she was entitled to have restitution of Millers and of the $4,000. That no sale had ever been made of Lammermoor, and the decree for the sale of the same had been rescinded, and she had been allowed to file her amended bill which she accordingly did.
On the 16th day of March, 1880, a decree was entered in the cause, rescinding the contract of January 11th, 1860, in which the court decided that the said Ann R. Clarke was entitled to he restored to Millers, and to he repaid the $4,000 she had paid for Poplar Grove to Wright, which Wright's executor should pay her with interest, and costs of her original bill, and Ferry and Hutchinson should deliver up to her Millers, and pay her the costs of her amended bill. And from this decree the appellants, Ferry and Hutchinson applied to this court for an appeal and supersedeas, which was allowed July 10th, 1880.
The facts thus appearing disclose the history of a remarkable causé. But while they are perhaps all that it is material to state with reference to the decree to be entered in this court, there were other and striking attitudes assumed by this cause during its progress for thirteen years in the circuit court of Essex—among them the suit of Roy v. Hoskins, which was a suit to subject the Poplar Grove tract to the debts of Mrs. Clarke's husband, Thos. U. Clarke, deceased; in which it-was discovered that Mrs. Clarke, after going into possession of Poplar Grove, sold portions of the said tract to raise the money due Wright, and conveyed the said Poplar Grove in trust to secure a debt due the creditors of her deceased husband; and in which it was decreed that Mrs. Clarke was entitled to dower in the Poplar Grove tract of land—by decree therein on the 18th day of February 1873; that in the year 1878, Poplar Grove was sold and bought by Mrs. Clarke, that is, such part as she had not already sold to others; this sale was not reported to the court. The record discloses the fact that Mrs. Clarke not only conveyed this tract in trust, but that from time to time she sold by deed with general warranty tracts of land cut off from Poplar Grove to as many as six different persons, and consti
We think this decree of the circuit court plainly erroneous. A decree bad been entered in the cause decreeing specific performance of this contract, and a sale of Lammermoor ordered to pay the debt due on Poplar Grove by Wright, who was the owner of Lammermoor under the agreement of January, 1860. If Lammermoor had been sold there would have been no difficulty about paying the debt on Poplar Grove out of the proceeds. But the sale of Lammermoor is not had, and the circuit court says that the agreement of January 11,1860, was incapable of being specifically performed because Poplar Grove had not been sold. The sale of Poplar Grove was made by the circuit court before the sale of Lammermoor, and there could have been but one object in this. The too obvious effect indicates plainly enough the change of policy of Mrs. Clarke in the premises. The parties to the agreement of January, 1860, had carried out and executed the same in all respects except by executing the deeds, and if Mrs. Clarke had availed herself of her bond of indemnity, which she does not deny she had, although it was alleged in the sworn answer of the defendants, or when she paid the $4,000 realized by the sale of the parts of the Poplar Grove tract of land, if she had caused the same to be applied to the ex-
Mr. Justice Buller observes, “there is a sound distinction between contracts executed and executory, and if an action be brought with a view to rescind, you must do it while the contract continues executory, and then it can only be done on the terms of restoring the other party to his original situation.” There can be no partial rescission of a contract, it must be done in toto, or not at all. Glassel v. Thomas, 3 Leigh, 113.
If a contract has been carried into execution, and the application is to a court óf equity to rescind it, that court will not lend a ready ear to a complaint of inadequacy, where there has been no fraud, concealment, or mistake such as may call into action the discretion of the court of equity which exists in such cases. All applications to a court of equity for specific performance of
In the contract, the subject of this suit, possession was delivered of the three tracts of land, and, as we have seen, the appellee used and occupied, encumbered, and, in large part, aliened the land she has since sought to surrender upon a rescission of the contract. A court of equity in a suit for specific performance, may allow the plaintiff to amend the bill, and ask, and then, in a proper case in the exercise of a sound discretion, rescind the contract. Lomax Dig., vol. 2, page 108.
When it appears in the progress of the suit upon a bill filed for the specific execution of a contract for an exchange of lands that the defendant cannot comply with his contract, the plaintiff may he allowed to amend his bill and to ask for a rescission of the contract. Parrill v. McKinley, 9th Gratt. 1.
That case proceeded upon the ground that the defendant was unable to make the deed to his land. In this case no such state of things existed. Boughton was able and willing, and so-admitted to be by the appellee, to make the deed, and he had specially contracted against a warranty of his title, though no-cloud seems to have rested upon it. In the original bill under
It is obvious no rescisión should have been decreed in this ease. The conduct of the appellee, her delay to ask for’it, her acquiescence, her sale of a part of the land, and conveyance of the whole land, are conclusive against the right to rescind in any form in which the bill might have been filed. Robertson v Hogshead, 3 Leigh, 729.
It was the appellee herself, who, by her conduct, created the ■only impediment to receiving a deed to the land she bought in the first instance and without delay. When she came to pay the
The application to a court of equity to rescind or cancel contracts for lands, like that for specific execution, is addressed to the sound judicial discretion of the court, and in the exercise of that discretion, the court not unfrequently refuses to rescind when it would also refuse to decree the contract to be performed, thus leaving the parties to their respective remedies at law. The maxim here is emphatically applied, he who seeks equity must do equity. 1st Story’s Equity, section 693. And the cases in which rescission should take place may be briefly stated to be those where there is a material mistake in the substance of the thingo contracted for, or a fraud perpetrated upon him who applies for the aid of the court. 3 Rand. 552; 6 Rand. 594; Glassel v. Thomas, 3 Leigh, 113, and cases cited; and if decreed at all, it should be complete and entire. Bailey v. James, 11 Gratt. 468, 475.
A mistake in law, however, where there is neither fraud, concealment, nor mistake in fact, constitutes no ground for rescinding a contract. Brown v. Armistead, 6 Rand. 604; 3 Rand. 604; 8 Gratt. 70; 21 Gratt. 313. And in every case of rescission the court must place the parties in statu quo. And, therefore, if the party complaining has done any act by which the rights of the other are affected so that he cannot be replaced in statu quo, be cannot aftenoards repudiate the contract. King v. Hamlet, 2 Mylne & Keen, 456.
The decree of the circuit court rescinding the contract in this
The decree is as follows :
The court is of opinion for reasons stated in writing and filed with the record, that the decree in this cause of the 16th of March, 1880, rescinding the contract of January 11th, 1860, is erroneous, and that the decree of the 6th day of November, 1818, is also erroneous and they are set aside and annulled, and that the appellants recover their costs expended in the prosecution of their appeal here. And the court proceeding to enter such decree as should have been rendered by the circuit court, it is adjudged, ordered and decreed, that the contract of the 11th day of January, 1860, he specifically performed and executed. And the cause is remanded to the said circuit court for further proceedings to he had therein to that end. That the appellants, Perry and Hutchinson, are to hold in undisturbed possession the tract of land called Millers. That the tract of land called Lammermoor he subjected to the payment of the sum of money which the appellee, Clarke, has been compelled to pay to the executor of Thos. Wright, deceased, so far as the same may go, and that the plaintiff below pay to defendants their costs expended in their defence in the said suit in equity in the said circuit court.
Decree reversed.