85 Va. 321 | Va. | 1888
delivered the opinion of the court.
This is an appeal from a decree of the circuit court of Roanoke city, rendered at the April term, 1888. On the first Monday in February, 1886, the appellants filed their bill in the hustings court for the city of Roanoke, against the appellees, to have specific performance of a parol agreement made about the 1st day of April, 1880, by which Isham M. Ferguson had contracted with them, to give and grant unto them his house and lot of six acres of land, and the furniture therein, upon the condition of their giving up their own home, and living in his, the said Ferguson’s, house, to protect, provide for, and take care of the said Ferguson, an old man, then diseased, childless, and a widower, much distressed and upset by the recent death of his wife; which agreement was consummated by the delivery of possession to the said plaintiffs, and their change of circumstances, by abandoning their own home, and by the sale of it; and the expenditure by them of large sums of money in erecting and constructing valuable improvements on the said house and lot, with the approbation of the said Ferguson; such as. re-fencing the said lot, erecting a small house thereon, and roofing the dwelling-house with slate, and repainting the same, which
It is sought to maintain the decree of the circuit court—-first, upon the ground that the decision in the Franklin county case is conclusive of this case, and the question here is res adjudicata ; and, secondly, because the contract sought to be enforced is not such as a court of equity should enforce, because it is not fair and equal; that full possession did not accompany it, and because the conduct of the parties procuring it was not such as would entitle them to the aid of a court of equity; and if fair, certain and just in all its parts, still it is not sufficiently proved.
It is necessary first to consider whether this suit is concluded by the suit referred to in Franklin county; for, if the question is res adjudicata, the whole matter ends there; for, when a matter is adjudicated and finally determined by a competent tribunal, it is considered as forever at rest. This is a principle upon which the repose of society materially depends, and it therefore prevails with very few exceptions throughout the civilized world. This principle not only embraces what actually was determined, but also extends to every other matter which the parties might have litigated in the case; and when the facts which constitute the cause of action or defense have been between the same parties submitted to the consideration of the court, and passed upon by the court, they cannot again be the proper subjects for an action or defense, unless the finding and judgment of the court are opened up or set aside by competent authority. This principle of law extends still further in quieting litigation. A party cannot relitigate matters which he might have interposed, but failed to do in a prior action between the same parties, or their
The original record in the Franklin suit, by Ferguson’s Adm’r and others v. Fishburne and Wife, was by consent brought here with this cause, so that the depositions therein may be read in this cause. Upon looking into that suit, the bill is filed to set aside and annul the conveyance of September, 1880. An issue was directed out of chancery to try the following issues: (1) Whether the deed in the proceedings mentioned, from Isham M. Ferguson to T. T. Fishburne and O. L. Fishburne, was obtained by fraud or undue influence. (2) Whether or not, at the time of the execution of the said deed, the grantor, Isham M. Ferguson, was incapable, by reason of disease, old age, or other causes, of clearly understanding the purport and object of the deed. The jury found the following verdict, which was recorded and approved by the court: “We, the jury, find for the defen
It appeai-s from the foregoing statement of the issues and judgment thereunder in the first suit that the sole question in issue there was as to the validity of the said deed, and the sole finding therein was that the said deed was not valid and binding on the grantor and those claiming as his heirs at law, because of his mental incapacity at the time of its execution. The question as to the validity of this deed was the sole question in the case to be determined, and the question in this suit as to the parol partly executed contract, for the conveyance of the said house and lot, etc., was not in anywise pertinent to the issue. If evidence of it had been offered, it must have been excluded under the scope of the pleadings in that case; and whenever any attempt was made to refer to this in the course of taking the testimony, it was promptly objected to as irrelevant. It was excepted to and properly ruled out, as it could not have been introduced under the pleadings in that cause. But it is suggested that it might have been brought in by way of defense to the action by a cross-bill, by the defendants setting it up against the plaintiffs. But this would have been in effect the institution of a new suit, making new pleadings, which would have been independent of the pending suit; and the original bill might have been dismissed, and the cross-bill remain unaffected, and the court might have proceeded to decree upon the issues in the cross-bill. A cross-bill is proper whenever the defendants, or either of them, have equities arising out of the subject-matter of the original suit, which entitle them to affirmative relief which they cannot obtain in that suit. Ragland v. Broadnax, 29 Gratt. 420. In a subsequent case, decided in the court of appeals of West Virginia (O. & O. L. Co. v. Vinal, and Vinal v.
Upon the question as to whether this contract is such as should be specifically performed in the light of the decided cases, we have no doubt. An agreement, to be entitled to be carried into specific performance, ought to be certain, fair, and just in all its parts. It is not considered as a matter of right in either party ; but it is matter of discretion in the court; a matter of sound and reasonable discretion, which grants relief according to the circumstances of each particular case. Courts of equity will not decree a specific performance in cases of fraud or mistake, or of hard or unconscionable bargains; or when the decree would produce injustice; or when it would compel the party to an illegal or immoral act; or when it would be against public policy; or when it would involve a breach of trust; or when a performance has become impossible; and generally not in any case when such a decree would be inequitable under all the circumstances. 2 Story Eq. Jur. §769; Sugd. Vend., c. 3, § 4, p. 123. In this case an old man sixty-six years of age, a widower, and childless, finds himself, upon the death of his wife, lonely and unhappy in their former home. He has relatives who appear to have been anxious to get a share of his property at his
The decree of the circuit court of Roanoke city having dismissed the hill of the plaintiffs, the same will be reversed and annulled, and a decree rendered here in accordance with the foregoing opinion.
Lewis, P., and Hinton, J., concurred in the opinion of the court as to the question of res judicata, but dissented as to the merits.
Decree reversed.