13 W. Va. 373 | W. Va. | 1878
delivered the opinion of the Court:
By chapter 66, section 12, Code p. 449, a married woman may sue and be sued without joining her husband in the suit, where the action concerns her separate property. Mrs- Dickson, as devisee of E. W. Bader, deceased, had the righr to sue without making her husband a party to the cause, as she held the property in controversy, under the will of E. W. Bader, as separate property.
The appellants urge that the court erred in setting aside and rescinding the contract of sale, made by Green A. Bader to Elijah W. Bader, May 3, 1861.
It appears, that on May 3d, 1861, Green A. Bader executed his bond to his brother, Elijah W. Bader, for $1,916.93, in which is incorporated the following: “It is understood, however, that I having sold to the said E. ~W. Bader a tract of land purchased by me of C. A. Neal, for $1,500.00 (or thereabouts), and when I procure a good title from said Neal, and convey the same to E. W. Bader, the amount is to be deducted from this bond.” Green A. Bader signed, sealed and delivered the contract.
The bill sets up this contract, and alleges the land to be the same one hundred and forty-nine, or, as, it is
As said in argument, “there can be no question of the validity of this contract between the original parties, unless it was incapable of execution on account of matters dehors the contract. It is a contract in writing, entered into between parties capable of contracting, and the subject is fully identified.”
"In the Vail case Judge Green says: “The purchaser knew, that no conveyance could be immediately made ; and that there was no possible means of removing the impediment, but the efflux of time; yet, with this knowledge, he made the purchase, and proceeded to carry it into effect, as far as under existing circumstances it could be done. And indeed there was no time stipulated for making the conveyance.” The Chancellor decreed execution of the contract, and the Court of Appeals affirmed it.
Courts do not sit to overthrow the agreements of parties, but to carry, them into effect, where they are legal, and equitable, and reasonable. 3 Leigh 187.
The principle is well established, that “ it is not essential, that the vendor had at the time of the contract such title and capacity to convey the property, or such means and right to acquire it, as would enable him to fulfill it on his part. It is sufficient, if he is able to convey, when he is required by the contract, or the equities of the case. And where time is not of the essence of the contract, the vendor will be allowed a reasonable time to obtain a perfect title.” Dresel v. Jordon, 104 Mass. 407; Mays v. Swope, 8 Gratt. 46.
Applying these well sustained principles to the case before us, it seems to me, the circumstances of this case require a specific execution of the contract of May 3? 1861, made between G. A. Nader and E. W. Nader. All the parties arc before the court, that are interested in and can be affected by the contract. If its specific! execution is enforced, it will be simply carrying out the wish of the original contractors, and furnishing that measure of exact justice, between the parties now interested, which those rules and principles, just cited, most equitably demand. If it is rescinded, it violates those principles, imposes a burden on the estate of G. A. Nader never intended by the original contractors, and not now necessary, but oppressive and prejudicial to the interests of James and Calvin.
Neal and family take no advantage of the conveyance, made tó Myles for the benefit of Mrs. Neal and children by .John Z. Neal, and claim none, but all join in an honest effort to convey the land according to the contract, and appeal to the court for its aid in that respect.
The answers of Neal, his wife, and all the defendants, and the deposition of John Z. Neal, show that the land thus conveyed was not only paid for by Neal, but was conveyed voluntarily to Myles, so far as Neal was concerned, and that too without his concurrence. The purchase of the land from Neal by Rader was bona fide, for valuable consideration; and Rader could under the. circumstances have compelled a conveyance to himself.
Hence, we may unite in the quaere made by the appellants : “ By what authority could Neal and the plaintiffs, whether actuated by fraudulent or honest motives, good or bad faith, abandon and annul a contract, which they had not made, to the prejudice of those whoso rights it affected and without their knowledge or consent ?”
JUDGMENT REVERSED. CAUSE REMANDED.