96 Va. 312 | Va. | 1898
delivered the opinion of the court.
The Fairmont Land Company, though chartered, was never organized. By it was meant W. P. Moomaw and his associates, who, on March 31, 1890, twelve days previously, had purchased from S. H. Gish and wife sixty acres of land within the corporate limits of Roanoke city for the price of $80,000, of which sum $15,000 was to be paid when a deed should be made to the land conveying to the purchasers a valid title in fee-simple. Gish and wife tendered to Moomaw and his associates a deed of conveyance, executed and acknowledged pursuant to the contract of sale. They refused to accept the deed and pay the purchase money, or any part of it, upon the alleged ground that Gish and wife could not convey a perfect fee-simple title. Upon their refusal, Gish and wife, in June, 1890, brought suit in the Hustings Court of the city of Roanoke against Moomaw and his associates to compel them specifically to perform their contract. The court, at the hearing, dismissed the bill, but on appeal to this court, the decree of the Hustings Court was reversed on September 22, 1892, and the vendors adjudged to be entitled to have specific performance of the contract. A rehearing having been granted, the court, on Api’il 13, 1893, adhered to its former decision. Gish and Wife v. Moomaw et als., 89 Va. 345, 376. In pursuance thereof, the Hustings Court, at its Uovember term, 1893, entered a decree against Moomaw and his associates for the purchase price of the land, which, however, has proved unavailing. Execu
After Moomaw and his associates refused to accept the land from Gish and wife, and the latter had instituted suit to compel performance of the contract, Jamison brought suit to rescind the sale of his house and lot to Gish. This suit, at the hearing, was dismissed by the court. Jamison not only acquiesced in its dismissal, but, so far as the record discloses, thereafter made no demand upon Gish that he perform the contract, nor took any action to compel its performance until the institution of this suit on October 31, 1894, more than four years after the sale, and upwards of three years after the last'of the purchase money was due and payable.
Every application for the specific performance of a contract is addressed to the sound judicial discretion of the court, governed by established principles. These principles require, among other things, that the party seeking the performance must show himself to have been ready, prompt, willing, and eager to perform the stipulation of the contract on his part. Bowles v. Woodson, 6 Gratt. 75; Ford v. Euker, 86 Va. 75; Dunsmore v. Lyle, 87 Va. 391; Powell v. Berry, 91 Va. 568; and Darling v. Cumming’s Ex’or, 92 Va. 521. It is also well settled that the court will not decree specific performance where the party seeking it has been guilty of such delay or conduct as to justify the presumption of an abandonment of the contract, or where to do so would work a hardship on either party, not only because of unfairness in the terms of the contract, but also where the applicant has been in default and the hardship is caused by subsequent events, or is the result even of collateral circumstances. The party seeking performance must not have remained quiet, or held himself aloof so as to enforce or abandon the contract as events might prove advantageous. 2 Minor’s Inst. (3d Ed.) 898; Pomeroy on Con., secs. 177, 185, 408; Willard v. Tayloe, 8 Wall. 557, 566; Booten v. Scheffer, 21 Gratt. 474, 497; and Anthony v. Leftwich, 3 Ran.
Applying the foregoing principles to the case before us, the complainant was not entitled to have specific performance of the contract, and the Hustings Court erred in decreeing its execution. From the time of the sale until the institution of this suit, he gave no evidence of a willingness or readiness to comply with his part of the contract, nor manifested any desire to have it performed by his vendee. He was in possession of the property at the time of the sale, and has ever since remained in possession. It does not appear that he at any time offered to give possession, or that he tendered or offered to make a deed to the property, upon the delivery whereof he was entitled to exact the cash payment. The only disposition manifested by him with respect to the contract previous to the institution of this suit was to abandon it by bringing a suit to rescind it. And this he did at a time when the property had risen in value from $16,000, the price at which he sold it to Gish, to $24,000. Failing in his suit to rescind, he thereafter remained quiet, and made no demand for the performance of the contract, nor took any steps to compel its execution, but, as heretofore stated, suffered to elapse more than four years after the sale, and upwards of three years after the last of the purchase money was due and payable before manifesting any disposition to perform the contract himself or have it performed by his vendee, and then did so at a time when the property had fallen in value to about one third of the price at which he sold it. A court of equity will not grant specific
Jamison, so far as respects the cash payment, had as much right to ask specific performance of his contract with Gish, when, in 1890, he brought suit to rescind it, as in 1894 when he instituted this suit to compel its specific execution. The cash payment was as much due then as it was at the institution of this suit. The sale was for cash as to one half of the purchase price, and the subsequent and concluding clause of the contract, that it was to be made as soon as the Fairmont Land Company made their cash payment to Gish, was not intended to alter the terms of the sale, or to make the receipt by Gish of the cash payment from the Fairmont Land Company a condition precedent to the payment of that due from him to Jami-son. The cash payment of the company has never been made, but at the time of the sale from Jamison to Gish it was expected by both of them that it would be made within a few days, just as soon as Moomaw and his associates could examine and be satisfied as to the title to Gish’s property. But although not made at all, or if not made according to their expectation, that from Gish was payable within a reasonable time, and Jamison, after a reasonable delay, had the right to exact its payment.
It was conceded that Jamison knew all about the sale from
The decree of the Hustings Court must therefore be reversed and the bill of the complainant be dismissed, leaving him to pursue any remedy he may have at law.
Reversed.