Asberry v. Mitchell.*

• Citation: 93 S.E. 638
• Court: Virginia Supreme Court
• Decision Date: 20 September 1917
• Parties: ASBERRY et al. v. MITCHELL.*

93 S.E. 638

(121 Va. 276)

ASBERRY et al.

v.MITCHELL.^*

Supreme Court of Appeals of Virginia.

Sept. 20, 1917.

Appeal from Circuit Court, Tazewell County.

Suit by E. R. Mitchell, by his next friend, against C. W. Asberry and others. From a decree for complainant, defendants appeal. Affirmed.

J. Powell Royall, of Tazewell, and Jackson & Henson, of Roanoke, for appellants.

Greever, Gillespie & Divine and C. R. Brown, Jr., all of Tazewell, for appellee.

WHITTLE, P. E. R. Mitchell, an infant suing by his next friend, brought this suit against the administrator and heirs of H. C. Asberry, deceased, to enforce specific performance of a written contract whereby Asberry agreed, in consideration of natural love and affection, and for the further consideration that Mitchell would pay all his expenses at the Abingdon hospital and maintain him during his natural life, to convey to Mitchell the 100 acres of land described in the contract, together with all his personal property. From a decree granting the prayer of the bill, this appeal was allowed.

The mother of appellee was a daughter of Asberry, and died when the child was only 16 days old, at which time the grandfather took him to his home where he has ever since resided. In May, 1915, Asberry, then 79 years of age, developed bladder trouble, and was advised by his physician, Dr. Holmes, to go at once to the hospital at Abingdon, Va., for treatment. At that time Asberry informed Dr. Holmes that he "wanted to fix it so Elbert Mitchell, his grandson, would get 100 acres more land, and his personal property, " andasked the doctor if he "could fix it for him." Dr. Holmes further testified that Asberry "did not itemize his personal property, but told me he wanted Elbert to have it all; and I asked him in regard to his money, and he said that, too—money and notes." Witness stated that Mr. Asberry then gave him the boundaries of the land as they are set out in the contract; whereupon he tore a leaf out of his daybook and wrote the contract and read it to Asberry, who said that was what he wanted. The contract was then signed by both parties and delivered to appellee, who requested Dr. Holmes to keep it for him, which he consented to do, and it remained in his possession until Mr. Asberry's death, which occurred some ten months afterwards. Although, as might be expected in a controversy of this character, the evidence was conflicting, nevertheless it preponderated in appellee's favor, and showed that he had in good faith fully performed the contract on his part.

In this state of the record, two controlling propositions of law are submitted for our determination:

(1) Is the 100-acre tract of land sufficiently described in the contract to enable the court, with the aid of permissible extrinsic evidence, to locate it? and

(2) Whether or not an infant can compel specific performance of a contract for the sale of land made with an adult, based on the consideration that he should pay all expenses of the latter at a hospital and maintain Mm during his natural life, which covenants the infant had performed.

These propositions will be considered in the order stated.

1.The land in controversy is described in the contract as:

"One hundred acres of land, bounded by Sarah M. Ratliff on the north and by E. R. Mitchell on the south, off the west end of the farm of H. C. Asberry."

The record showed that Asberry's land was situated on the north side of Clinch Mountain, in Little Valley, in Tazewell county; and the location of the Ratliff and Mitchell tracts, and the western boundary of Asberry's land, were well known to the parties. Thus we have a definite boundary of the 100 acres to be cut off, on the north, south, and west; and the circuit court correctly held that the remaining line, the east line, should be run due north and south (from the Ratliff land on the north to the Mitchell land on the south), so as to include 100 acres. Accordingly, the county surveyor of Tazewell county was directed to go upon the land described in the contract, and lay off the 100 acres as indicated above, and report. It is not perceived wherein this description is insufficient to enable the 100 acres to be definitely and accurately located.

It is well settled that:

"Evidence aliunde is admissible in all cases where there is a doubt as to the true location of the survey, or a question as to the applica tion of a grant to its proper subject-matter. It is not a question of construction, but of location. It is a question of fact, to be determined by the jury (in this instance by the court) by the aid of extrinsic evidence." Reusen v. Lawson, 91 Va. 226, 235, 21 S. E. 347, 349.

In the present case, the contract supplied the necessary data, and the ascertainment of the correct location of the eastern line was merely a question of surveying.

In Warren v. Makely, 85 N. C. 12, the following description was held sufficient to identify the part to be cut off as a distinct tract:

"One hundred acres lying in Currituck township, near the head of Smith creek; it being the eastermost portion of the farm purchased from my brother, and known as the Russell land."

In Bank v. Catzen, 63 W. Va. 535, 60 S. E. 499, it was held:

"The terms 'eastern one-half, ' in a deed conveying one-half of a tract of land, in the absence of admissible parol evidence disclosing a different intention, would mean the eastern half, formed by a line to be run due north and south through the tract."

See, also, Lavis v. Wilcox, 116 Minn. 187, 133 N. W. 563; Robinson v. Taylor, 68 Wash. 351, 123 Pac. 444, Ann. Cas. 1913E, 1011; Schmitz v. Schmite, 19 Wis. 207, 88 Am. Dec. 682.

The language of the contract, giving the north and south boundary, and providing that the 100 acres be cut "off of the west end of the farm of H. C. Asberry, " necessarily imports that the east line must run due north and south, since no other course would satisfy the language of the contract.

2. The remaining question is whether or not an Infant can compel specific performance of a contract for the sale of land made with an adult, based on the consideration that he should pay all expenses of the latter at a hospital and maintain him during his natural life, which covenants the infant had performed.

If appellee had been an adult when the contract was entered into with his grandfather, it could not have been specifically enforced by either party while it remained executory on both sides, because of want of mutuality in remedy. Part of appellee's consideration involved the performance of personal services for the grandfather; and in such case a court of equity will not decree specific performance, because it cannot look after the rendition of personal services. Eaton on Eq. 536; Newman v. French, 138 Iowa, 482...