101 Va. 814 | Va. | 1903
delivered the opinion of the court.
This suit was brought by the appellee, A. G-. Bryant, for a sale of certain lands owned by Patsie Plunkett in her lifetime, and a division of the proceeds between himself and the other heirs. The bill alleges that Patsie Plunkett died intestate and childless, the owner of seventy-four acres of land, which she had derived from her father’s estate, leaving her husband, J. D. Plunkett, surviving, who was in possession of the said land. The surviving husband, who, with others, was made a party defendant, demurred to this bill, and, without waiving his demurrer, filed an answer, which he asked should be treated as a cross bill. The allégations of this cross bill are that the lands in question, derived by Patsie Plunkett from the estate of her father, were without buildings, except a tobacco house, and that she was without the means of erecting improvements; that respondent was the guardian of his son, O. H. Plunkett, by a former marriage, and, as such, had in his hands belonging to his ward between $600.00 and $700.00; that his wife proposed that, if respondent would use his own money or the money of his ward in erecting a dwelling and other necessary buildings upon the land, she would, by her last will and testament, give and devise the land to respondent for life, with remainder to his ward; that respondent accepted this proposition, and did erect upon the land a dwelling and other buildings, at a cost of more than $500.00, using for the purpose the money of his
Subsequently, 0. BE. Plunkett, the former ward of J. D. Plunkett, with the leave of court, filed his petition, in which he reiterates as true the averments made by his father with respect to the alleged agreement set up by the latter in his cross bill. He, however, insists that should the court refuse to grant the prayer of the cross bill by compelling the heirs of Patsie Plunkett to convey the land in question to J. D. Plunkett and petitioner, in accordance with the alleged agreement, that the money of petitioner used in erecting improvements should be ascertained, and the land subjected to its satisfaction. The heirs of Patsie Plunkett demurred to this petition, and filed an answer denying its allegations.
On the 6th of September, 1901, a decree was entered overruling the demurrer of J. D. Plunkett to the original bill. And on the 12th of March, 1902, a decree was entered sustaining the demurrer of the heirs of Patsie Plunkett to the cross bill filed by the defendant, J. D. Plunkett, and overruling their de
There are but two assignments of error. The first calls in question the action of the court in overruling the demurrer of appellant to the original bill filed by appellees, asking for a sale of the land and a division of the proceeds. This demurrer was properly overruled. The suit is not, as contended, a substitute for an action of ejectment. It was brought by one of the heirs of Patsie Plunkett, deceased, against her late husband, J. D. Plunkett, and the remaining heirs at law for partition of the land whereof Patsie Plunkett died seized and possessed. The bill alleges that the land in question was the property of Patsie Plunkett, and that no children were ever born to her. These allegations must be taken as true on demurrer, and they exclude the idea that J. D. Plunkett has any interest in the property as tenant by the courtesy or otherwise. The allegation is distinct that the heirs at law of Patsie Plunkett are the owners of the property. The interest of a party in the subject matter must appear, or be made to appear, before he can be heard to-make defence. .
The second assignment of error is tq the action of the court in sustaining the demurrer of appellees and dismissing the cross bill filed by appellant. This demurrer was sustained upon the ground that the cross bill sought specific performance of a verbal agreement, and that the facts alleged were not sufficient to take the contract from under the operation of the statute of parol agreements. .Courts of equity, in their efforts to do complete justice and prevent fraud, have in certain cases relaxed the operation of the statute and decreed the specific performance of a parol agreement for the sale of land where the contract has been clearly and distinctly proved, and part performance in pursuance of the agreement established. There is no
' The principles upon which a court of equity will avoid the statute of frauds and enforce a parol agreement for the sale of land are well settled. They are briefly but clearly stated in Wright v. Puckett, supra, to be as follows: “1st. The parol agreement relied on must be certain and definite in its terms. 2nd.. The acts proved in part performance must refer to, result from, or be made in pursuance of the. agreement proved. 3rd. The agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not He in compensation. These requisites must concur before a court of equity will decree specific execution.” The act or acts of part performance
La the light of these well-settled principles, we are of opinion that the cross bill filed by appellant was properly dismissed. As already seen, the alleged agreement was between appellant and his wife, living together on the wife’s maiden land. The allegation is that appellant expended, during his wife’s lifetime, about $500.00, belonging to his son and ward, in the erection of certain buildings upon his wife’s land, with the understanding and promise on her part that she would make a will giving him the lands and improvements for life, with remainder to his son in fee. The allegation is that appellant fully performed his part of the contract by erecting the buildings. The erection by the husband of the buildings mentioned upon his wife’s maiden land, that she was in possession of until her death, cannot be regarded as an act of such an unequivocal nature as of itself to be evidence of an agreement that he should be compensated therefor. It can hardly be said that such an act could be done with no other view or design than to perform a pre
Por these reasons the decree appealed from must be affirmed.
Affirmed.