96 Va. 498 | Va. | 1898
delivered the opinion of the court.
Where the contract is executory, it is now well settled in this State, that the mutual mistake of the parties in a matter which is part of the essence of the contract and of the substance of the thing contracted for will be relieved against in a court of equity, and may be a good ground for rescinding the contract, or of specifically executing it upon equitable terms of compensation, according to circumstances. Lea’s ex’r v. Eidson, 9 Gratt. 278-9.
But where the contract has been executed, and rescission is asked upon that ground, the mistake must be plain and palpable, and must affect the very substance of the thing contracted for. Thompson v. Jackson, 3 Rand. 504; Glassell v. Thomas, 3 Leigh, 113.
The subject matter of the contract and conveyance in question is described in the deed as being a parcel of land:
“Beginning at the north-west corner of West Gilmer and Second streets; thence with West Gilmer street, south 68 degrees 10 minutes, east 335.1 feet to a point on the Moorman Road; thence with the Moorman Road north 45 degrees 10 minutes, West 331.65 feet to a point; thence North 68 degrees 10 minutes, West 30 feet to Second street; thence with Second street, south 21 degrees 50 minutes West 130 feet to the place of beginning, and known as section 17, as shown by the map of the property of Rogers, Fairfax and Houston, on file at the office of the clerk of the Hustings Court of the city of Roanoke, Virginia.”
The following map or diagram, which is the one used in argument by counsel, shows substantially the shape and loca
The vendee claims that he purchased the lot for building purposes, but the evidence shows that it was purchased at auction in the year 1890, a period of wild speculation in town lots; that it was low, much of it swampy, and not desirable for building purposes; that he held it more than three years without any intention, so far as the record shows, of building upon it, and was making an effort to sell it when he first learned of the mistake now complained of. Under these circumstances, it can hardly be doubted that it was purchased for speculation, and not specially for building purposes.
It does appear that the land lost was not quite so low as the land in rear of it, and was therefore more suitable for building upon, and that by its loss the width of the lot between the Moorman road and West Gilmer street, has been decreased, and that by reason thereof it has been injured for building purposes. The evidence further tends to show that the land lost is more valuable foot for foot than the residue of the lot, and that such residue is not as valuable as the whole lot would be by one-third, or perhaps more.
These facts, if the contract were executory, might be sufficient to justify a court of equity in refusing to specifically execute it at the suit of the vendors, but they are not sufficient, in our opinion, to require its rescission when executed by the parties. The land lost was a material part of the substance of the contract under consideration, but it was not the sub
We are of opinion, therefore, that the Circuit Court erred in decreeing a recission of the contract. Its decree must be reversed, and the cause remanded, with direction to the court to ascertain and allow the vendee just compensation for the land lost by superior title; it now being settled in this State that notwithstanding the vendee’s right to proceed at law upon his covenants for title, he has the right to go into a court of equity upon the ground of mistake, and recover compensation. Blessing v. Beatty, 1 Rob. 287; Boschen v. Jurgens, 92 Va. 756; and Hull v. Watts, 95 Va. 10.
Reversed.