Ashby v. Dumouchelle, Record No. 3104.
| Decision Date | 25 November 1946 |
| Docket Number | Record No. 3104. |
| Court | Virginia Supreme Court |
| Parties | WILLIE R. ASHBY v. NAPOLEON DUMOUCHELLE. |
Present, Holt, C.J., and Hudgins, Gregory, Eggleston, Spratley and Buchanan, JJ.
1. APPEAL AND ERROR — Reversal — Burden of Showing Error. — Where there is reviewed the finding of a chancellor upon conflicting evidence, the burden of showing error is upon appellant.
2. APPEAL AND ERROR — Affirmance — Decree Based upon Conflicting Evidence. — A decree based upon conflicting evidence cannot be reversed unless it appears from the evidence that it is plainly wrong or without evidence to support it.
3. APPEAL AND ERROR — Affirmance — Decree Based upon Depositions. — While a decree based upon depositions is not as strong and conclusive as one based on evidence heard ore tenus, it is presumptively correct, and cannot be disturbed if it is reasonably supported or sustained by substantial, competent and credible evidence, that is, the evidence must be clearly against the findings in order to justify a reversal.
4. SPECIFIC PERFORMANCE — Real Property Contract — Failure of Vendor to Read Contract — Case at Bar. — In the instant case, a suit for the specific performance of a written contract for the sale of land, defendant contended that a mistake was made in the description of the property; that the description was uncertain; and that she signed the contract without reading it, because of her confidence in plaintiff. Plaintiff had his attorney prepare the contract and left it with defendant for execution after defendant had read and examined it, and defendant signed, sealed and acknowledged the contract in the absence of plaintiff.
Held: That, under the circumstances, defendant could not rely on her inexcusable negligence, in failing to read the contract, to defeat the terms of the written agreement.
5. SPECIFIC PERFORMANCE — Real Property Contract — Sufficiency of Evidence to Support Decree Enforcing Contract — Case at Bar. — In the instant case, a suit for the specific performance of a written contract for the sale of land, defendant contended that a mistake was made in the description of the property; that the description was uncertain; and that it would be inequitable to enforce the contract because of inadequacy of price. The option described the land as the property owned by defendant "which lies between the strip of land owned by the State Highway Department and Swift Creek" and defendant owned but one parcel answering that description. Three of the four boundaries named in the contract were definite and certain and the fourth was more in accord with the general description than with defendant's contention that she had agreed to sell only a parcel to the rear of a lot owned by plaintiff. Two experienced real estate dealers testified that the amount named in the contract was a fair price for the property claimed by plaintiff.
Held: That the clear preponderance of the evidence supported the conclusion that there was no uncertainty in the description of the property embraced in the contract; that there was no mistake of the parties as to the land intended to be sold; and that the enforcement of the contract entailed no hardship upon anyone.
Appeal from a decree of the Circuit Court of Chesterfield county. Hon. J. G. Jefferson, judge presiding.
The opinion states the case.
Henry L. Snead, for the appellant.
R. J. Francis and Charles Edgar Gilliam, for the appellee.
This is a suit brought by Napoleon Dumouchelle against Mrs. Willie R. Ashby for the specific performance of a written contract for the sale of land. The contract dated June 5, 1942, in consideration of a cash payment of $25, gave the plaintiff the exclusive right or option to purchase at any time within two years of its date, land described as follows:
"All that certain tract of land situate in Matoaca District, Chesterfield County, Virginia, which is bounded on the east by a strip of land owned by the State Highway Department; on the south by Fred Pilcher's property, on the west by Swift Creek and on the north by property now or formerly belonging to Marie Thompson and being the property owned by Willie R. Ashby which lies between the strip of land owned by the State Highway Department and Swift Creek."
The full consideration for the land was stated as $1500, "payable upon reasonable terms to be agreed upon at the time of the exercise of the option to purchase," less a credit of $25, the sum paid for the option.
The following roughly sketched plat will show the land involved, and make clearer the contention of the parties:
Illustration Omitted The plaintiff claimed that the option embraced all of the land, shown on the above plat, lying west of the strip of land owned by the State Highway Department, north of the Pilcher line and south and east of Swift creek.
The defendant, on her part, contended that a mistake was made in the description of the property; that the description given in the contract was uncertain; and, in addition, that it would be inequitable to enforce the contract because of the inadequacy of price.
Only a short summary of the evidence is required.
Mrs. Ashby originally owned two parcels of land in Chesterfield county, Virginia, which she inherited from her late husband, C. A. Ashby. One of these parcels, comprising lots A, B, and C, as shown on the attached plat, fronted on the Richmond-Petersburg turnpike; the other parcel, comprising 7.42 acres, less .75 of an acre on the south, which had been conveyed by C. A. Ashby to Mrs. Susan Pilcher, wife of Fred Pilcher, in 1928, fronted on a strip of land 100 feet wide, separating this parcel from the first described parcel. This strip was formerly owned by a suburban electric railroad company, but had been abandoned for railway purposes and conveyed to the State Highway Department. However, it had never been improved, dedicated, or used for highway purposes.
Parcel C was conveyed by the defendant to the plaintiff in 1940. Parcel B had also been conveyed to her to Mary E. Thompson. Mrs. Ashby retained parcel A for her residence. Margaret J. Thompson owned the land to the north of the first tract adjoining parcel A. The triangular piece of land containing .75 of an acre in the southern end of the original tract of 7.42 acres had been conveyed to Mrs. Pilcher for the purpose of straightening her lines.
The plaintiff testified that a short time before June, 1942, he offered the defendant $500 for that portion of her land, west of the 100 foot strip, directly back of his land, lot C, and included between a continuation of the northerly and southerly lines of the property already owned by him; in other words, lot 2 on the above plat. She refused the offer, but said she would think it over.
The plaintiff saw Mrs. Ashby again in about three weeks, at which time he said he offered to buy all of her land west of the 100 feet strip for $1500, provided she would give him two years in which to raise the money. She told him she would think it over. He told her to consult her brother, and let him know. She agreed. Five or six weeks later, she told him she was willing to sell the entire parcel for $1500, and instructed him to have an optional contract drawn up. The plaintiff had his attorney prepare the contract, and left it for execution before a notary public, after she had read and examined it. On June 6, 1942, in the absence of the plaintiff, Mrs. Ashby signed, sealed, and acknowledged the contract. Upon its delivery to him, the plaintiff paid her $25. He then recorded the contract in the clerk's office of Chesterfield county.
In September of that year, the plaintiff informed Mrs. Ashby that he was going to take up the option soon. She told him that she had decided not to sell.
The next January, he went to see Mrs. Ashby, carried her $1475, and told her he was ready to take a deed for all of the property west of the 100 foot strip. She then informed him that she would only convey to him the land shown as lot two. She said, When her attention was called to the description of the land in the written contract, she said she was offered more money for the whole parcel and that she would not convey it to the plaintiff at the price named in the contract.
Subsequently the plaintiff had his attorney prepare a deed covering the...
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