Hudson v. Max Meadows Land & Improvement Co.

99 Va. 537 | Va. | 1901

Harrison, J.,

delivered the opinion of the court.

This is a suit for the specific execution of an alleged parol contract for the sale and exchange of real estate.

The allegations of the original bill are fully set out in the opinion of this court found in 97 Va. 341. The case was then before us ujion an appeal from a decree dismissing the hill upon demurrer. That decree was reversed, the court holding that the bill stated a case which entitled the plaintiff to a reference, to ascertain the condition of the title, in order that the court might determine whether or not there was a contract between the parties which a court of equity would enforce. Since the cause was remanded to the Circuit Court depositions have been taken for the plaintiff and defendant, a report -upon the title made, and numerous liens audited against the property in question. To this report the plaintiff filed exceptions, and also asked leave to file an amended and supplemental bill. Upon the hearing, the Circuit Court, being of opinion that the complainant was not entitled to a specific execution of the alleged contract, declined to allow the amended and supplemental bill to be filed, and, without passing upon the exceptions to the commissioner’s report, dismissed the original bill, but without prejudice to the complainant’s right to institute such action as he might be advised to bring in a court of law.

"We are of opinion that there is no error in this decree. The acts of part performance relied on to take the alleged parol agreement out of the operation of the statute of frauds are not shown to be of that positive and substantial character which is required to bring this class of cases within the well recognized principles of equity jurisdiction. Fry on Spec. Per., sec. 599; Pom. Spec. Per., secs. 109, 110.

There is, however, a further and more insuperable difficulty in the way of the relief sought in this case. One of the terms of the alleged agreement was that the defendant company should make a clear and unencumbered title to the land exchanged by it. The complainant has not only never waived this'condition, but insists upon its performance. The record shows that there are numerous liens aggregating many thousand dollars resting upon the several parcels of land belonging to the defendant company including the tract involved in this controversy. It further shows that the liens resting upon the land in question, as to which there is no exception, amount to more than the alleged purchase price.

The record further shows that to prosecute the enquiry as to whether the defendant company can be put in a position to make a clear and unincumbered title, its affairs, together with those of other corporations, would have to ‘be wound up; mortgages and deeds of trust foreclosed; and controversies and settlements brought into this case having no connection whatever with the original subject matter of controversy. Hor does the record disclose any assurance that the conclusion of this multiform and protracted litigation would find the defendant any better able to comply with the terms of its contract than it now appears to be.

The inability of the defendant to perform the alleged parol ' agreement, when called upon by the court to do so prevents a decree for its specific performance. Jones v. Tunis, ante p. 220.

The decree appealed from is affirmed.

Affirmed.