92 W. Va. 97 | W. Va. | 1922
This suit is for specific performance of a contract com
■Plaintiff, Ruckman, owned lots 22 and 23 of block 4 in the Round Barn Addition to the city of Elkins, and in 1907 conveyed them, with general warranty, to.Morgan for $850.00 cash.- At that time a prior vendor’s lien existed against the property of which Ruckman claims to have had no knowledge. Afterwards, Morgan, who is now dead, leaving no estate, conveyed these lots with general warranty, to defendant, Hay, for $1,000.00. As the result of a suit to enforce the vendor’s lien against these lots they were sold and confirmed to Elliott. Hay was made a party to that suit, but being a non-resident of the state was proceeded against by publication and had no actual notice of the sale until after the deed was made, when he then instituted a suit in covenant against Ruckman under the general warranty in the deed to Morgan. This action of covenant was matured and set for trial on the 16th of June, 1919. About the first of June, Tallman, counsel for defendant, and Maxwell, counsel for plaintiff, entered into negotiations 'for a settlement of the action of covenant. It appears that each had full authority to adjust all matters arising out of the litigation. It appears that Tallman proposed to obtain title to the lots from Elliott, the purchaser at the judicial sale, and re-eonvey them to Hay in satisfaction of his claim under the action of covenant, and thus put him in statu quo. Maxwell agreed to this, with the understanding that no expense should be incurred until he could communicate with his client and receive confirmation of the agreement. About the 4th of June Tallman went to Belington, where Elliott resided, and purchased the lots from him for his, client for $400.00; then returned to his office at Elkins, prepared a deed therefor and took it back to Elliott on the 11th of June, when it was acknowledged and delivered and the $400.00 paid. Upon returning to Elkins, he immediately informed Maxwell that he had procured a deed for the lots and was ready to convey them in accordance
In March, 1921, plaintiff presented his bill, exhibiting therewith the deed from Elliott to him, dated June 11, 1919, and his deed of October 6, 1919, which conveys these two lots, and set up the facts concerning the agreement herein-
Has equity jurisdiction to specifically enforce a contract of compromise of this character? This is tbe issue raised. It is conceded by defendant that tbe acceptance of Hay, by bis telegram of June 14th, wbicb be afterwards confirmed by letter, was an offer on bis part in writing and would baye become binding upon him when Ruckman accepted tbe same; and that tbe execution of tbe deed by Ruckman on tbe 6th of October was such an acceptance on bis part as bound him; but before that time Hay, through bis counsel, on tbe 27th of June, 1919, withdrew bis acceptance. Tbe claim is that tbe contract, so far as Ruckman was concerned, was optional with him until be executed tbe deed of October 6th, that up to that time tbe contract was not binding upon him under tbe statute of frauds, he not having signed any mm-orandum or note in writing wbicb would bind him to perform bis part of tbe contract, prior to tbe date of bis deed of October 6th; and thus tbe contract being optional on tbe part of Ruckman was likewise optional on tbe part of Hay, and Hay having exercised bis option to withdraw from the contract, it cannot now be specifically enforced against him.
There is some confusion and conflict in tbe decisions as to the application' of tbe statute of frauds in contracts of this character, possibly arising from tbe wording of tbe statute in each particular jurisdiction. A large class of cases holds that a contract wbicb tbe statute of frauds declares shall not be valid unless in writing and signed by tbe party to be charged therewith, need only be signed by tbe party against whom the suit is instituted, and that it is no objection to
We think that equity has jurisdiction to enforce the contract as alleged in the bill; that there is no substantial difference in the evidence showing the facts alleged; that Hay agreed in writing to accept a deed for these lots in consideration of the settlement of his claim arising under the suit in covenant; that Ruckman agreed to execute and deliver a deed for that consideration, and was able to do so, then having the title thereto; that he had a reasonable- time thereafter to execute and deliver said deed and that Hay’s attempted withdrawal from the contract did not relieve him therefrom after its acceptance. Wé are of the opinion- to reverse the decree of October 12, 1921, sustaining the demurrer to the bill and dismissing the same, and will enter a decree here awarding the specific performance of the contract; that Hay be required to accept the deed tendered to him with the bill; that the confession of judgment by Ruek-
Reversed- and entered.