Baker v. Glass

• Decision Date: 02 November 1818
• Citation: 20 Va. 212
• Parties: Baker v. Glass. Glass v. Baker
• Court: Virginia Supreme Court

20 Va. 212

Baker v. Glass.

Glass v. Baker

Supreme Court of Virginia

November 2, 1818

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A written agreement was made between Isaac Baker and Joseph Glass, in the following words:

" Memorandum & c., the said Isaac Baker has sold his land in the State of Kentucky, two tracts, one on Highland Creek of 900 acres, the other on Grave Creek of 66 2-3 acres, to Joseph Glass, on the following conditions; for two dollars per acre, provided they will suit Joseph Glass on his return from Kentucky; then the said Isaac Baker is to take a house and lot in Middletown in Berkeley county, Virginia, to be valued by two persons what said property is worth in Cash, or to allow said Joseph Glass fifteen hundred dollars, if it will rent for a term of years at seventy-five dollars, and so on, in proportion, should it rent for more than the abovementioned sum. Or if the said Joseph Glass should prefer paying me the money, ^[1] the said Baker agrees to take the following payments, viz; one third in September 1811, one third in September 1812, and the balance in September 1813."

Signed and sealed by both parties; dated January 24th 1810; and attested by a Witness; with a clause subjoined, (which also was signed and sealed; ) viz:

" N. B. It is understood that there is to be a general Warranty given by both parties, for Lands, and House and Lot."

Glass went to Kentucky, saw the lands, and on his return told Baker he was willing to take them.

On the 24th of May 1810, they agreed, by endorsement on the original agreement, to leave the valuation of the house and lot to William Wilson and David Castleman junr. The said referees, after viewing the property, could not agree in opinion, and Baker refused to appoint an umpire, though Glass proposed it. Before they separated, however, it was verbally agreed by Baker as well as Glass, that other referees should be appointed at some other time, but no day was fixed on for making such appointment; and Baker, soon afterwards, declared that he considered the contract void, and demanded a surrender of the writing. Glass refused to give it up, and tendered to Baker a Deed conveying to him, in fee simple, with general warranty, the House and Lot in Middletown, with twenty or thirty dollars, which he considered the difference in value between that property and the Lands in Kentucky; which Deed and money Baker refused to receive.

A Bill was thereupon filed by Glass, in the superior Court of Chancery from the Winchester District, praying that Baker be decreed to convey to him the Kentucky lands, " upon his doing what the Court should think proper," and that such other relief be given as justice required.

The defendant by his answer, contended that the Court ought to pronounce the contract void, but said he was willing that a sale of the House and lot on twelve months credit should be directed, with an assignment to him, by the Complainant, of the Bonds taken at such sale, (the property to be held liable for payment thereof,) and a decree for the balance, with interest from the date of the written agreement; or that the Complainant should be decreed to pay for the whole land, in cash, at two dollars per acre, the last day of payment having nearly arrived. The respondent was then and had always been willing to let him have the land for money, at the price, and according to the alternative terms of the agreement.

Chancellor Carr appointed Edward McGuire and James Stephenson, (or, if they should disagree, Daniel Lee as their umpire,) to say how much the House and Lot were worth in cash on the 12th of May 1810, and how much at the time of their valuation; directing them if the value was less at that time than on the said 12th of May 1810, to say what, in their opinion, had caused such depreciation of value. The said referees reported the value at both periods to be the same; to wit, twelve hundred dollars: whereupon the Chancellor was of opinion, that the Complainant, having executed the Deed filed among the proceedings since the last term, would be entitled to a specific performance of the contract in the Bill mentioned, upon his paying the balance of the purchase money for the Kentucky land. He therefore decreed that if the complainant, on or before the expiration of six months, from the date of this decree, should pay to the defendant the sum of $ 733 33 cents, with interest 'till paid, on one third of that sum from September 30th 1811, on another third from September 30th 1812, and on the residue from September 30th 1813, then the defendant should forthwith make and execute to the Complainant a Deed in fee simple, with general warranty, for the Lands in Kentucky mentioned in the articles of agreement; should accept the Deed for the House and Lot, and pay the costs of the suit: but, if the Complainant should fail in making the said payment, his bill should be dismissed with costs.

This decree was afterwards so modified as to permit the Complainant to pay the money and interest into Court, to be handed over to the defendant; which payment he accordingly made; but then appealed from so much of the decree as directed that he should pay interest. The defendant also appealed; and, on his motion, a Receiver was appointed to put out the money to interest, until the said appeals should be decided.

Wickham for the defendant, (among other points which need not here be mentioned,) relied upon the cases of Smallwood v. Mercer and Hansbrough, 1 Wash. (VA) 290; Graham v. Call executor of Means, 5 Munf. 396; Cooth v....