92 Va. 24 | Va. | 1895
delivered the opinion of the court.
In addition to those mentioned in the bill, the agreement between the parties contains this further provision: “ The said tract being all the remainder of the tract purchased by E. E. Moore of F. Spiller which has not heretofore been sold off, supposed to contain about 175 acres; and the balance of the 210 acres to be taken off the Holland Iron Works land, adjoining the Spiller land, and running about north and south •from Crockett’s Mill road- to the old town turnpike, so as not to interfere with or include the iron ore bank of E. E. Moore, which is hereby reserved.”
From this decree an appeal was allowed to this court, and the only question that need be considered is, whether appellant’s demurrer to appellees’ bill should have been sustained.
The contract between the parties, by fair construction, entitled appellant, upon payment of the purchase money, to a deed of conveyance of the land by a sufficient title, defining the metes and bounds of the land, and in particular those of that portion “ to be taken off of the Holland Iron Works land,” to make up, with remainder of the “ Spiller tract,” the 210 acres. As we have seen, the bill does not even allege that the appellees had done all that was required of them under the contract, nor their ability and willingness to convey by a sufficient title the property which they had agreed to convey, nor that they had tendered a sufficient deed thereto to appellant. In fact, no allegations or averments of this character are made in the bill. “ One who seeks to compel another to fulfill a contract of purchase is required to plead and prove his ability and willingness to convey by a sufficient title the entire property which he has agreed to convey, and a tender of a sufficient deed thereto. * * * This deed must be brought into court and the tender of it kept good until the suit has been determined.” 22 Amer. & Eng. Ency. of Law, pp. 1039 and 1040.
“ The bill [for specific performance] must show that complainant has done everything necessary to entitle him to performance of the contract by the defendant, and that there is
The courts in some of the States of the Union have held that a tender of the deed with the hill is not required, but we think the better rule, deducible from the weight of authority, is that complainant be required to allege the facts constituting performance on his part, and tender with his bill a sufficient deed of conveyance of the title of the property he has agreed to sell and convey, that the court may judge whether he has done what he ought, and whether the deed is such a conveyance of the title as the contract requires.
In the case'of Kenny v. Hoffman et als, 31 Gratt. 442, where the contract provided that Kenny was to pay the purchase money as soon as he got a clear title, and where Hoffman had tendered to the agent or counsel of Kenny a deed which only conveyed “the legal and equitable interests of the grantors in the land, and all those claiming by or through them,” and afterwards filed the deed with his hill for specific performance of his contract with Kenny, and in which he averred that he (Hoffman) had done all that was required of him under the contract, this court held that Hoffman was not entitled to the specific performance, as Kenny was entitled to a conveyance not only with general warranty, but, under his contract as construed, a title free from encumbrances—“ a clear title.” See also Griffin v. Cunningham, 19 Gratt. 571.
We are of opinion that the appellees in the case here did not, by their bill, make a case that entitled them to the specific performance of their contract with appellant, and that therefore the Circuit Court erred in not sustaining the demurrer thereto; and for this error the decree complained of must
Reversed.