127 Va. 65 | Va. | 1920
delivered the opinion of the court.
Mrs. Annie B. Clarkston, a widow, died intestate in April, 1917, seized and possessed of two lots on Floyd avenue, Richmond, Virginia. There survived her, as her sole heir, a daughter, Imogene B. Clarkston, who afterwards intermarried with Harry M. West. Within one year after the death of her mother, to-wit, on November 1, 1917, Mrs. West united with her husband in a deed conveying said lots to the appellee, Edgar Allan, Jr. On January 5, 1918, Allan entered into a written contract with the. appellant whereby Allan agreed to sell and the appellant agreed to purchase said lots on terms set forth in said contract. Under the-terms of said contract the lots were to be conveyed to the appellant by proper deed duly acknowledged and made ready for recordation, and the appellant was to pay $2,950 cash and to assume the payment of certain liens on the property for the balance of the purchase money. As evidence of this assumption, the appellant was to sign the deed of conveyance which contained a proper covenant on his part to pay off - and discharge said liens. It was further stipulated that the deed and cash should be delivered to trustees designated in the contract, and that the transfer of the title and the final settlement for the lots should not be made until May 15, 1918, when more than one year should have elapsed since the death of Mirs. Annie B. Clarkston. The contract concludes with the following stipulation :
“It is mutually agreed by the said vendor and the said*68 vendee and it is a distinct part of the agreement that the said vendee, Henry G. Heeke, shall not be required to comply with any of the provisions of this contract unless the said Edgar Allan, Jr., and his wife, can one year after the death of Annie B. Clarkston make a valid conveyance of said real estate as fully and effectually as the same could then be made by the said Imogene Clarkston West and her husband, had they not made their said deed dated November 1, 1917, hereinbefore referred to.”
Allan executed the deed required of him and delivered it to the trustees designated and fully complied with the contract on his part.' He then called upon the appellant to make the cash payment and to sign the deed, but he de- * dined to do so, and this suit was instituted on March 12, 1918, to compel the appellant to specifically perform his said contract. The trial court entered a decree compelling specific performance, and from that decree this appeal was granted._ The appellant resisted performance on three separate grounds, all of which the trial court rejected, and their rejection is made the basis of the assignments of error in the petition for this appeal.
1. It is assigned as error that the testimony does not sufficiently establish the fact that Mrs. Imogene C. West was the sole heir of Mrs. Annie B. Clarkston. The fact is clearly established by the testimony of the mother and half-sister of Mrs. Clarkston and there is no evidence to the contrary. It would be a waste of time to discuss this assignment.
2. The second error assigned is .that, “Under the laws of Virginia, Allan, having purchased from an heir within one year of the ancestor’s death, could not, after the expiration of such year, sell and transfer a valid title.”
Before discussing this assignment of error, it might be well to state that the decree appealed from was entered February 3, 1919, and that prior to that time the personal
*70 “Any heir or devisee who shall sell and convey any real estate which by this chapter is. made assets, shall be liable to those entitled to be paid out of the said assets, for the value thereof with interest; in such.case, the estate conveyed shall not be liable, if the conveyance was bona fide, and at the time of such conveyance no suit shall have been commenced for the administration of the said assets, nor any report have been filed as aforesaid of the debts and demands of those entitled.”
North Carolina has a statute very similar to ours, in which the period of forbidden alienation by the heir or devisee is fixed at two years after the death of the debtor. In Badger v. Daniel, 79 N. C. 372, 381, it was said: “It is of course conceded that the sale by Henry Joyner, of the lands devised to him, to Whitfield, having been made within two years after the death of Andrew Joyner, was void as to the plaintiff. Whitfield held the land as Henry Joyner did, and sales by Whitfield after two years, passed unencumbered estates to his vendees.” The same view was taken in Davis v. Perry, 96 N. C. 260, 1 S. E. 610.
The case of Hopkins v. Ladd, 12 R. I. 279, was cited by counsel for appellant as taking a different view of a similar statute, and the following language therefrom is quoted: “This language seems sufficiently plain, and must be taken to mean that a deed made by the heir before the time specified would be void as to creditors. This, we believe, was the general understanding of the profession.” This in no wise conflicts with the views hereinbefore expressed.
We do not deem it necessary to cite or comment upon the many cases which have come before us on the sufficiency of acknowledgments to deeds, as none of them is in conflict with our present holding, and it would be a useless consumption of time and space to point out analogies or differences.
For the reasons hereinbefore stated, we are of opinion that the decree of the Chancery Court of the city of Richmond should be affirmed.
' Affirmed.