121 Va. 563 | Va. Ct. App. | 1917
delivered the opinion of the court.
Possession was given by Riner and assumed by Mrs. Lester in accordance with the contract, and the latter re
On May 25, 1915, Mrs. Lester paid Riner $1,000 and on November 13, 1915, $500, as credits on the bond due May 1st in that year, but she failed to make further payments, and this suit was brought by Riner to enforce his vendor’s lien. Mrs. Lester answered the bill setting up the defense hereinafter mentioned, and the cause having been matured for hearing upon the evidence introduced by both sides, the court entered a decree, evidently upon the theory that there had been no valid delivery of the deed, denying the relief prayed for in the bill, cancelling the contract, and directing an account to ascertain the purchase money already paid, the value of the rents with which Mrs. Lester should be charged and the improvements on the land with which she should be credited, and other items deemed necessary by the court in order to enable it to render a final decree carrying into effect the rescission of the contract.
The answer sets up four grounds of defense to the bill, two of which are wholly without merit and are not now,, as we understand, relied upon by the defendant. The other two grounds will be disposed of in the order in which they appear in the answer.
1. The deed of January 1, 1915, from W. T. Riner to Mrs. Lester described the land as “containing 108 acres more or less, with all the buildings and improvements thereon, being the same land that was conveyed to W. T. Riner by David Riner by deed dated April 1, 1884, except W. T. Riner has conveyed to Letcher Lawrence about three acres off of said land.” This general description was followed by one giving the metes and bounds of the original David Riner tract and added these words: “There is included in these metes and bonds and is excepted therefrom the land conveyed to Letcher Lawrence.”
It is manifest that if there was.a valid delivery and acceptance of the deed, and an execution and delivery of the. purchase money bonds in accordance therewith, these facts conclude the defendant and end the controversy on this branch of the case.
Both Mrs. Lester and her husband testified that they never saw the deed and never knew of its exact contents until after this suit was brought. We are constrained to the conclusion that the clear weight of the testimony is to the contrary. M. H. Tompkins, the attorney with whom the Lesters had left the original contract and who prepared the deed and the purchase money bonds in question, testified that Mrs. Lester and her husband and W. T. Riner came to his office sometime in January, 1915, for the purpose of having him' to prepare these papers, that the exception was discussed and understood by them all, and that the deed after being prepared was read to Mr. and Mrs. Lester, and was then executed and then left with him for them in his capacity as their attorney. He was paid $5.00 by Riner for writing the deed but did not at that time represent him otherwise, his relationship to the transaction and the parties, * unquestionally remaining then, as it had theretofore been, that of counsel and attorney for the Lesters. Tompkins further testified that when the deed was prepared, he also prepared the purchase money bonds. It is not denied that these bonds were executed as recited
After Mrs. Lester had made default in meeting the first payment, Riner spoke to Tompkins about bringing this suit. His reply was that as he had represented the other parties to the contract and deed, he doubted whether he' should do so, or words to that effect, but subsequently, according to his statement, he saw the Lesters about the matter and they told him that if a suit had to be brought, they would prefer that he should bring it. Mrs. Lester inferentially contradicts Tompkins in this respect but he is corroborated by a letter which he wrote to G. E. Lester about the time this suit was brought, and by Lester’s reply. Tompkins in his letter said to Lester: “You understand my position in this matter. You have always told me that if the suit had to come you would rather I would have it than any one else. I have represented you all in this matter and I hope it can be adjusted along the lines that you all have been trying to arrange. Let me hear from you.” Lester, without questioning the facts recited by Tompkins, replied as follows: “Your letter of January 3rd duly received. I am sorry our friend took the position in the matter that he did as it may hurt us in closing the deal which we have pending and which was ready to close. I requested Mr. Stauffer to write you in the matter and I trust he has done so. You will hear further from me within the next day or so, or as soon as I know just what can be done and at what date.” The fact that Tompkins was originally the attorney for the Lesters and subsequently with their consent brought the present suit, explains how it happened that the deed, which had never left his possession since the day of its delivery, was produced by him and filed with the bill.
They admit that Tompkins told them he had the deed but claim that he said there was to be no delivery until
But even if the deed was never delivered, the result must be the same. There is no substantial reason upon which the appellee can base any claim that she contracted for any more or any different land than that which she actually gets under the deed. She did not get all the land conveyed to W. T. Riner by David Riner, but she did get what she contracted for, namely: “a tract of land supposed to contain 108 acres, more or less, and all the buildings and improvements thereon which was conveyed to said W. T. Riner by his father, David Riner, by deed dated on the 1st day of April, 1884, which land — has for a number of years been occupied by said party of the first part (JW. T. Riner) as a home.” W. T. Riner had not occupied as a home or otherwise any part of the Letcher Lawrence three acres for a number of years. The original David Riner tract contained about 111 acres, although at the time of the conveyance to W. T. Riner by his father, it was believed to contain about 108 acres. Deducting the three acres sold to Letcher Lawrence, Mrs. Lester gets about 108 acres (107acres by actual measurement), the very land with the buildings and improvements thereon which was and had long been occupied by W. T. Riner as a home place, and the very land which her own practical construction of the contract, as conclusively disclosed by her conduct, shows she thought she was getting. This Lawrence three acres was conveyed by W. T. Riner twelve years before he sold the residue of the tract to Mrs. Lester. Lawrence at once took possession of the three acres, built a house and planted an orchard thereon, and otherwise improved the premises. The Lawrence place, at the time of the sale of the 108 acres to
In view of our conclusion upon the facts of the case, the question discussed by counsel, as to whether this must be regarded as a suit to enforce a vendor’s lien or as a suit to specifically enforce the contract, is immaterial. In either event, the complainant is plainly entitled to a decree for the-sale of the land, to satisfy the purchase money; and the decree complained of will accordingly be reversed and annulled and the cause remanded to the lower court for further proceedings to be had in accordance with this opinion.
Reversed.