118 Va. 346 | Va. | 1916
delivered the opinion of the court.
The motion of appellee, E. Bee Trinkle, to dismiss the appeal, for the reasons that W. E). Belvin, Jr., Byle R. Belvin, Marjorie
The material facts leading up to the final decree in the cause complained of are as follows: In 1882 certain relatives of W. D. Belvin purchased for him a farm in Wythe county, Va., containing 190 acres, which farm was, by deed dated April 2, 1882, executed by J. M. Suavely and wife, for the consideration of $5,500, conveyed to Witcher Jones, trustee for W. D. Belvin, in trust “for the use and benefit of W. D. Belvin for his life, and at his death to be conveyed by the trustee to such person or persons as should then be the legal heirs of said W. D. Belvin, in such portion as they would be entitled to by law if said Belvin had owned the land in fee, and had died intestate.” W. D. Belvin was not provident, and domestic differences arose between him and his wife, culminating in a divorce from bed and board about the year 1902, and- the decree provided for alimony at the rate of $225 per annum to Mrs. Belvin in addition to costs and allowances for attorney’s fee. About the time the divorce suit was pending two creditors’ suits against W. D. Belvin were brought, in which suits, consolidated, the farm held by Jones, trustee, was rented out to satisfy the debts of Belvin and to pay alimony to his wife, and the annual rental for some of the earlier years amounted to $300, but this was later reduced on account of the condition of the property and the terms under which it had to be rented, so that the prevailing rental ran for a number of years at $225 per annum; the result being that all of the proceeds of rental were taken up in the payment of the debts involved in the creditors’ suit, only a small amount' having been paid on alimony, and the unpaid alimony having accumulated to about $1,100 or $1,200. The farm had been in the hands of renters for a number of years before it was rented out by the court, had become so much run down from year to
The condition of the wife and children (some of whom were living with their mother) was that the debts of the father and costs of the creditors’ suits, taxes and expenses of such repairs as were made upon the farm had so depleted the revenue from rent derived therefrom that practically nothing had been paid on the alimony decreed to Mrs. Belvin, and the amount of alimony due had accumulated, as remarked, to about $1,100 or $1,200, without any hope of its being paid, or of the current revenues from the farm being sufficient to pay the alimony that might accrue from year to year. The condition of W. D. Belvin, the husband and father, was that he was separated from his wife and children. He had no home, and being without means of support, and an old Confederate soldier, he had finally drifted to the Soldiers’ Home in Richmond to receive such care and comfort as the bounty of the State could provide for him.
In these circumstances, and as the price of land in the vicinity of the farm had risen since the original purchase of it, so that it was thought that an investment of the proceeds of its sale in some other form would prove more beneficial to all concerned, Mrs. Belvin and her children became desirous of selling the farm, with the view of relieving the embarrassing situation described and putting the investment in some other form. W. D. Belvin at first did not favor a sale of the farm, as he had an exaggerated idea of its value, and a fanciful notion that the land was underlaid with some kind of valuable
The trustee in the deed under which the title to the property was held, Witcher Jones, had been dead several years and H. M. Heuser was substituted trustee in his stead. Heuser who had been acting as receiver of the court in said chancery cause, and as attorney for Mrs. Belvin and her children, took the view that a sale of the property would be to the advantage of all concerned, as appears from certain letters written by him to W. D. Belvin appearing in this' record as exhibits “Heuser Ho. 1” and “Heuser Ho. 2.” After these letters were written, the matter of the proposed sale of the property for a change of the investment was taken up by the brother of W. D. Belvin with appellee, E. Lee Trinkle, resulting in a conference at Bichmond, at which an understanding was reached that the property might be sold, and that Trinkle should purchase it. The best offer that could be obtained for the property at that time, as shown by Heuser’s letter, Exhibit Ho. 1, was somthing like $11,000—that is, there was a prospect to sell the property for something like $11,000, which Heuser considered a good price. There was some competition by the parties in the neighborhood who desired to purchase the land, or a part of it, surpassing the expectations of everyone. This competition finally resulted in an offer of $13,000, $1,000 in excess of the amount at which Heuser was authorized to sell by a
Bor the purpose of effecting a sale, Lula B. Belvin, the wife, and the five children of W. D. Belvin, by power of attorney dated November 4, 1913, authorized Heuser to take proper steps in court to sell the property, and as their attorney in fact, to sell and convey for them and in their name all of their right, title and interest in and to the said property, provided it be for a sum of not less than $12,000, and that the proceeds of the sale be held as the property was held under the deed of trust aforesaid; and in order to make such authority effectual, they gave to said Heuser “full and complete power in the premises to do, execute, acknowledge, seal, deliver,' receipt, acquit, proceed with and finish in all things in as ample manner as they might do if personally present, ratifying and confirming all lawful acts done by our said attorney,” etc.
Pursuant to this power of attorney, a contract in writing was entered into between Heuser, as the duly authorized agent and attorney for Lula B. Belvin and her four adult children, and Heuser, as receiver of the court and trustee for W. D. Belvin, and the said W. D. Belvin in his own right, parties of the first part, and E. Lee Trinkle, party of the second part, by which the parties of the first part, after sundry recitals, and particu
Basing them upon the said contract, Heuser, for the wife and adult children of W. D. Belvin, and the wife and adult •children of W. D. Belvin filed their respective petitions in the .said chancery cause pending in the Circuit Court of Wythe •county, in each of which petitions petitioners set out at length the condition of the property, the condition of the parties interested therein and the reasons why the property should be sold .at the price and upon the terms set forth in their contract with Trinlde, made an exhibit (“A”) with their respective petitions, and prayed the court to authorize, confirm and ratify such a ■sale of the property as had been agreed, on in said contract, .and a reinvestment of the proceeds for the use and benefit of the parties interested therein, under the same conditions and limitations set out in the “Witcher Jones” deed and as the statute provides: the petition of the wife and adult children •of W. D. Belvin being sworn to. To these petitions the separate answer of W. D. Belvin (Sr.), and of Minnie W. Belvin, his infant child, in her own right and by her guardian ad litem, were duly filed and depositions were taken and filed, showing that the price to be paid by Trinkle for the property was a fair price therefor; biit before these petitions, together with the exhibits therewith, had been actually filed in court and the
Upon the hearing of the cause upon said petitions and the answers of W. D. Belvin and the infant defendant and of her guardian ad litem, the depositions of witnesses referred to, and also the answer of Trinkle asking the court not to receive the bid of said W. E. Snavely and claiming that he had a binding contract with the adult children of W. D. Belvin interested in the property, and that he was certainly entitled to whatever would ultimately come to said adults over and above his own bid of $13,010 if sold to other parties than himself; upon the replication of Heuser as receiver and trustee to the contention in the answer of said Trinkle that by a binding contract (Ex. A, supra) he had purchased the property in question from all the adult children of W. D. Belvin at the price of $13,010, subject only to the determination by the court of the question whether or not the property should be sold for a change of the investment therein originally made, and was entitled to whatever would ultimately go to said adult parties of the proceeds of the sale, if such sale was made at a price over and above the said sum of $13,010, the amount he had agreed to pay for it; and the court being of opinion that a sale of the property was proper independently of any admissions in the answers of the parties or otherwise, and that the rights of no one would be violated thereby, but that the interests of the beneficiaries under the deed by which the property was held would be promoted by a sale of it and a loan or investment of the proceeds under the direction of the court, on account of one of the parties interested, Minnie W. Belvin, being under the age of twenty-one years, ordered and decreed that H. M. Heuser, receiver and trustee in the cause, proceed to offer for sale the property in question at public auction, the advertisement to be made of the sale, time, place and terms thereof being prescribed in the decree, and that the bidding at the sale should be started at $15,250, the offer made for the property by W. E. Snavely.
Hpon the final hearing of the cause, after certain pleadings' had been filed by Heuser, as receiver and trustee, and by E. Lee Trinkle, the court considered the matter upon the entire record, and construed the contract of November 5, 1913, between the wife and adult children of W. I). Belvin and the said W. D. Belvin, as parties of the first part, and E. Lee Trinkle, party of the second part, to be a valid and binding contract so far as the interest of the parties thereto in the lands in the petition and proceedings mentioned were concerned, and that the price agreed to be paid by Trinkle for the land under the proof offered by petitioners themselves was a fair and reasonable price therefor, the decree then entered stating, “that the court should, and would, have decreed the sale and conveyance of the said property to the said E. Lee Trinkle at the said price of $13,010 in the absence of an advance bid, which advance bid was received because of the interest of the infant defendant, Minnie W. Belvin; and it further appearing that said purchaser (Trinkle) was able, ready and willing to comply with his said purchase, and that the said purchaser has not relinquished his rights under his contract, but has at all times insisted thereon, and such rights having been expressly reserved in decrees heretofore entered, the court is of opinion, and doth adjudge, order and decree that by virtue of said
The petition of H. M. Heuser, receiver and trustee, and the four adult children of W. D. Belvin for this appeal from said decree, presents the single question whether or not the circuit court erred in construing the contract, “Exhibit A” supra■, between appellee, E. Lee Trinkle, and the adult children of W. D. Belvin and W. D. Belvin to be a concluded contract fixing the price to be paid by appellee for the Belvin farm, and constituting appellee the purchaser of the property as a whole, conditioned only upon whether or not the court would order or approve the sale of the property; so that, if the court had declined to change the investment, then the contract would have been at an end, for the very objects of it would have entirely failed, and there would have been nothing to be done under it. The court, however, granted the prayer of the petitions that a sale of the property be approved, ratified and confirmed pursuant to and upon the terms, etc., contained in said contract, “Exhibit A,” and decreed, .as observed, that appellee, Trinkle, should stand in the place and stead of such of the children of W. D. Belvin as were parties to said contract, and as should survive W. D. Belvin—that is, the court only substituted appellee, Trinkle, to the rights of the adults in said surplus fund who had joined in said contract, the interests of the respective parties and their transferree, Trinkle, in the said surplus fund to be determined as of the date of the death of W. D. Belvin.
The depositions taken and filed by appellant in the cause,
This contract with appellee has all the elements of finality as to the parties on whose behalf it was executed, and it is not contended that appellee was contracting for the purchase of the separate interests of the parties to the contract in the property, the contract being for the purchase of the property, not a mere option of offer to purchase it, and, as between appellee and the adult children of W. D. Belvin, was a fixing of the price at which appellee bound himself to purchase it, so far as their interests were concerned, it being understood by all the parties that, in order to transfer and vest a complete title
In a note to said section it is said: “Under this section every conceivable interest in or claim to real estate, present or future, vested or contingent, and however acquired, may be disposed of by deed or will.” Citing as authority a number of decisions by this court. See also Howbert v. Cauthorn, 100 Va. 649, 42 S. E. 683; Lantz v. Massie, 99 Va. 709, 40 S. E. 50, 7 Va. L. Reg. 538, and note 543.
The vice in the contention of appellants in this case is that they are measuring the rights of the parties to the contract with appellee which they are seeking to avoid, not by the facts as they existed at the time of the contract, but in the light of subsequent developments.
We are of opinion that the decree of the circuit court complained of is right, and it is affirmed.
Affirmed.