Epperson v. &dagger

• Decision Date: 10 September 1908
• Citation: 62 S.E. 344,108 Va. 471
• Court: Virginia Supreme Court
• Parties: EPPERSON. v. EPPERSON et al.&dagger

62 S.E. 344

108 Va. 471

EPPERSON.

v.EPPERSON et al.†

Supreme Court of Appeals of Virginia.

Sept. 10, 1908.

1. Equity—Jurisdiction — Nature of Proceeding.

A proceeding by original bill, by the assignee of an obligor in a contract for support, which contract provided for the conveyance of land to obligor and his brother on condition that they support their parents, for a construction of the contract and a determination of the relative rights in the land of the assignee and the obligee in the contract who was in possession of the land, with an amended bill seeking to enjoin the obligee's cutting of timber thereon, comes within the jurisdiction of a court of equity; the original bill partaking of the nature of a suit for specific performance, and the amended bill seeking injunctive relief against irreparable damages to the freehold.

2. Same—Necessary Parties—Admission on Own Initiative.

The brother of the assignor of the contract and his co-obligor, being a party to the original transaction, was a necessary party to the litigation, and he, being omitted as a party to the original and amended bills, was properly admitted as a party defendant on his own initiative without formal amendment, and permitted to file an answer; no injustice being occasioned thereby.

3. Deeds—"Defeasance"—Stipulation for Avoidance of Agreement in Separate Instrument.

Where a deed of land conveyed in consideration of a contract for support, and a stipulation for the avoidance of the agreement in case of failure to perform the contract embraced in a separate instrument form parts of one transaction, the stipulation for avoidance constitutes a defeasance.

4. Words and Phrases — "Defeasance" — "Condition."

An instrument which defeats the force or operation of some other deed or of an estate is a defeasance; but, if the provision is in the same deed, it is a condition.

[Ed. Note.—For other definitions, see Words and Phrases, vol. 2, pp. 1394-1400, 1930-1931.]

5. Contracts — Entire Contracts — Contracts for Support.

Where two persons obligated themselves to support their parents in consideration of the conveyance of land to the obligors, their contract was entire, and not severable, and, when breached by one of the obligors, avoided the agreement in its entirety.

6. Deeds—Defeasances—Intention of Parties.

While courts regard with disfavor conditions and defeasances which are calculated to prevent or defeat the absolute vesting of titles, they will not hesitate to give effect to the intention of the parties when the condition or defeasance is clear and explicit.

7. Assignments — Contracts — Executory Contracts for Personal Services,

An executory contract for personal service, founded on personal trust or confidence, is not assignable.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 4, Assignments, §§ 28-31.]

8. Equity—Trying Issues Between Codefendants.

The rule that, if plaintiff in an equitable proceeding cannot get at his right without trying and deciding a case between codefendants, the court will try and decide that case and the codefendants will be bound, but that, if the relief given plaintiff does not require or involve a decision of any case between codefendants. the codefendants will not be bound by any proceedings which may be necessary only to the decree the plaintiff obtains, is not applicable where the rights and equities between codefendants necessarily arise upon the pleadings and evidence between plaintiffs and defendants, and hence does not apply where the principal question involved in the pleadings and decided by the court was the construction of a contract for support executed by codefendants, and the necessary result of the decision of that issue between plaintiff and defendants was to affect the rights of defendants among themselves and in such a case a decree might be rendered between the codefendnnts without cross-pleadings.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 19, Equity, § 1000.]

Appeal from Circuit Court, Scott County.

Bill by S. F. Epperson against W. H. Epperson and others to construe a contract for support, and to determine the respective rights of plaintiff, an assignee of one of the obligors, and the obligee, in land charged with the performance of the contract, to which J. H. C. Epperson was on his own initiative admitted as a party defendant. There was a decree declaring the contract not assignable and declaring W. H. Epperson the owner ofthe laud, from which plaintiff and defendant J. H. C. Epperson appeal. Affirmed.

Richmond & Bond and W. S. Cox, for appellant.

Irvine & Morrison, for appellees.

WHITTLE, J. The following are the material facts in this case: By agreement between the appellees, W. H. Epperson and James S. Haynes, the latter bought the land in controversy for Epperson (who, with his father, were former owners) at a judicial sale; the understanding between the parties being that Epperson was to continue in possession of the property, and on repayment of the purchase money Haynes was to convey him the legal title. Agreeably to that compact, by direction of Epperson, Haynes on May 3, 1897, in consideration of $178.25, the balance of purchase money then due, conveyed the land to Epperson's two sons, I. S. L. Epperson and J. H. C. Epperson. The conveyance was part of a family arrangement between father and sons, which was reduced to writing May 15th following. By that contract, in consideration of the conveyance of the farm to the sons—W. H. Epperson and wife reserving the right to the dwelling house occupied by them, with the curtilage, for life—I. S. L. Epperson and J. H. O. Epperson agreed "to furnish them whatever support they may need while they live, and to see that they are well cared for in sickness, and, if said parties of the second part fail to furnish such support, then said parties of the first part may take charge of the above farm and rent it to whomsoever they please to secure their support. The parties of the second part agree to pay James S. Haynes the full amount due him; * * * and each further agrees to build a house on said farm and to occupy the same. It is mutually agreed that if said parties of the second part fail to comply with any one of the provisions of this agreement which is binding on them, then the whole of it, together with said deed from James S. Haynes, are null and void."

I. S. L. Epperson wholly failed to perform his part of the contract, and moved to Kentucky. He subsequently, on May 18, 1904, undertook to convey an undivided moiety of the land to the appellant S. P. Epperson, who thereupon filed an original bill (and afterward an amended bill) in the circuit court of Scott county against W. H. Epperson and wife, I. S. L. Epperson, and Haynes; the object of the suit being to have the court construe the agreement of May 15th, and determine the rights of W. H. Epperson and ihe plaintiff as assignee of I. S. L. Epperson, respectively, in the land, and also what support, if any, he was to furnish W. II. Epperson and wife, and, in the event he was not entitled to possession of the farm, he then asked that Haynes be decreed to refund the amount paid in discharge of the balance due thereon. The amended bill charged that W. H. Epperson was cutting the merchantable...