Barrett v. Mcallister

CourtSupreme Court of West Virginia
Writing for the CourtBrannon
Citation11 S.E. 220,33 W.Va. 738
PartiesBarrett. v. McAllister et al.
Decision Date15 March 1890

11 S.E. 220
33 W.Va.
738

Barrett.
v.
McAllister et al.

Supreme Court of Appeals of West Virginia.

March 15, 1890.


Options—Specific Performance—Parties-Statute of Frauds.

1. A unilateral contract, commonly called an "option, " proposes to sell land for cash, "if paid within fifteen days." There must he acceptance of it within the fifteen days, and notice of such acceptance to the proposer within the same period; otherwise the option is at an end.

2. If the proposer is not, within the said period, ready and able to deliver to the holder of the option a deed conveying the land, and the holder of the option knows that fact, and declares to the proposer, within the period, his willingness and intention to pay the purchase money simultaneously with the delivery of such deed, and there is good reason to believe on the part of the proposer that though the holder of the option has not actual current money then to pay or tender to the proposer in payment for the land, yet he has credit and ability to give bank-checks, which would be honored by the time the deed can be delivered, but which the proposer refuses, or that he will have the actual money present for payment by the time the deed can be delivered, and the holder of the option has, within the period, accepted it and given notice of his acceptance to the proposer, then the failure of its holder to pay or tender the purchase money within the period will not lose to him the benefit of the option, though such payment or tender was demanded of him by the proposer within the period.

3. The obligation of such proposer to deliver such deed and the obligation of the holder of the option to pay the money are mutual and dependent, and are to be performed simultaneously.

4. A third party who, with notice of such equity of the holder of such option, purchased the land from such proposer, takes it subject to the rights of the holder of the option, and holds it in trust for him, and the latter may in equity follow the land into the second purchaser's hands, and compel him to convey the land to him.

5. In a suit in equity against the proposer of such option and the second purchaser, the holder of such option may pray for the specific execution of the contract by a conveyance of the land to him from them, or, in the alternative, for the purchase money which the second purchaser agreed to pay, and the one or the other relief may be decreed according to the circumstances, or as the plaintiff may elect. But in case there shall be a decree, not for specific execution, but for money, the decree must be against the proposer in such option, and not against him and the second purchaser, or against the latter alone.

6. In case of such a decree for money, and not for specific execution, it is proper to hold the land bound for its payment, and to decree its sale for non-payment.

7. When an answer admits an agreement for the sale of land as alleged in the bill, though it be oral, the defendant must plead the statute of frauds and perjuries, or the answer must claim its benefit; otherwise he is held to have admitted the agreement, and renounced the statute's benefit.

8. If the answer denies generally the making of any such agreement as that alleged in the bill, the plaintiff must prove an agreement valid under the statute; but if the answer admits an agreement substantially the same as that alleged in the bill, and differing from the agreement alleged in the bill in points not essential, the answer is treated as admitting the agreement, and, unless the defense under the statute is made by plea or answer, the statute will not avail the defendant.

9. When a party purchases land with notice of an equity in a third party, in a suit by such third party to enforce his equity, brought after such purchase, such purchaser is a necessary party, if relief by way of sale of the land is given, unless it appear either that ho had notice of the suit pending at the time of his purchase, or that notice of lis pendens had been recorded under section 13, c. 139, Code 1887, before such purchase.

10. It is error to decree land to be sold in which a person not a party to the suit has an interest, legal or equitable.

11. It is error to take a bill for confessed against a party proceeded against as a non-resident, and render a personal decree against him if he has not appeared in the cause.

(Syllabus by the Court.)

Appeal from circuit court, Pocahontas county.

Brown & Jackson, W. M. McAllister, and C. P. Jones, for appellants.

Knight & Couch, for appellee Barrett.

Brannon, J. In June, 1887, Frank Barrett brought this suit in the circuit court of Pocahontas county against William McAllister and others, alleging in his bill that on April 8, 1887, William McAllister, Samuel C. Tardy, and Samuel C. Tardy, Jr., owned a tract of land in Pocahontas county containing 4, 711 acres, composed of several contiguous parcels conveyed by a deed exhibited with the bill; that on April 8, 1887, he entered into negotiations with said McAllister and Tardys, through Mc

[11 S.E. 221]

Allister, acting for himself and said Tardys, 'for the purchase of 2, 500 acres, part of said 4, 711 acres, and said defendants made a verbal agreement to sell him the2, 500 acres for $1.25 per acre, half to be paid in cash, the balance in 12 months; that McAllister furnished Barrett with a plat of the 4, 711 acres, showing the parcels composing it, and designated the 2, 500 acres embraced in the verbal contract as made up of lots 8, 9, 10, and 11 on the plat, containing, respectively, 440, 415, 530, and 547 acres, and so much of lots (i and 7 on said plat as would make up the 2, 500 acres, by running a line from the most southerly corner of lot 6 to the eastern side of lot 7, taking that part of lots G and 7 on the west of said line. The bill further alleged that Barrett asked that the contract be reduced to writing; that on the 25th of May, 1887, said McAllister, for himself and co-owners, made a proposition in writing, signed by McAllister, to sell to Barrett 2, 500 acres of timbered land in Pocahontas county, meaning the 2, 500 acres above described, and about which said verbal negotiations had previously taken place, for $1.25 per acre cash, if paid within 15 days after the 25th day of May, 1887; that after the making of this proposition, and before its acceptance by the plaintiff, to-wit, on June 6, 1887, McAllister went with plaintiff on the land, and pointed out the 2, 500 acres, and pointed out on a plat said 2, 500 acres as embraced within lots Nos. 8, 9, 10, and 11, containing 440, 415, 530, and 547 acres, respectively, laid down on said plat, and. so much of lots fi and 7 thereon adjoining lots 8 and 9 as would be required to make up the 2, 500 acres by running a line from the most southerly corner of lot No. 6 to the eastern side of lot No. 7; that after the 25th of May, 1887, and before the 9th day of June, 1887, to-wit, on the 7th day of June, 1887, he accepted said proposition of sale, and notified said owners of his acceptance; that on the 7th day of June he was ready to pay, and offered to pay, said owners the purchase money, and demanded a deed, but they refused and failed to execute such deed, and on the 10th day of June, 1887, entered into a written contract, agreeing to sell to D. W. Hile, acting for himself and Anthony Bloom and Eli Bloom, said lots 8, 9, 10, and 11, embraced in said contract of sale to the plaintiff, and lot 7 and part of lot 6, if Hiles and Bloom should so elect, part of which two lots were also embraced in the sale to plaintiff. The bill further alleges that in the sale by McAllister and the Tardys to Hile and Blooms the vendors were to receive $2.25 per acre; and that said vendors entered into negotiations with Hile for the purchase about the 8th of June, 1887, and that McAllister and Tardys really agreed to sell to Hiles and Bloom on or about the 8th of June, because they were getting one dollar more from Hile and Bloom than from plaintiff, and that this was the reason why they refused to keep their contract with the plaintiff. The bill further alleges that when Hile began negotiations for such purchase he had notice of the contract between plaintiff and McAllister and Tardys, and that they conspired fraudulently to cheat and defraud the plaintiff out of the land. The plaintiff alleged that he was still ready and willing to comply with his contract, and pay the purchase money, upon the execution of a proper deed, and he demanded the same, and prayed that McAllister and Samuel C. Tardy and Samuel C. Tardy, Jr., be compelled to make him a deed for the 2, 500 acres of land upon his payment of the purchase money, and that defendants D. W. Hile, Anthony Bloom, and Eli Bloom be compelled to join in the deed, or, if such specific performance could not be had, that the court would adjudicate that the sale to Hile and Bloom was a sale for the use and benefit of the plaintiff, and that he be decreed $2,500 of the purchase money which Hile and Bloom were to pay for the land, that being the excess which they paid over what the plaintiff was to pay for the land, and that behave a personal decree against the defendants therefor, and against the land for payment thereof. The answer of McAllister denies the allegation of the bill that on April 8, 1887, he entered into negotiations with Barrett for the sale of 2, 500 acres of land, or that he then made any agreement to sell plaintiff any of said land at any price, or that he furnished a plat to the plaintiff showing said 2, 500 acres, or designated the part which would go to make up the 2, 500 acres, or that any line was agreed on to designate any certain part which he was willing to sell. He denies that he was ever required to put the alleged verbal contract in writing, and says that, on the contrary, all that was ever said by plaintiff was contained in a letter of May 11, 1887, in this language: "I do not want an option, but simply write me that you will sell to me at...

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49 practice notes
  • Cecil v. Clark
    • United States
    • Supreme Court of West Virginia
    • April 9, 1898
    ...well as the deed, are sufficient memoranda to constitute basis for the specific execution of them against Torbett. Barrett v. McAllister, 33 W. Va. 738, 11 S. E. 220; Parrill v. McKinley, 9 Grat. 1. It is said that a certain Pickett grant for a large tract of land, older than the Chapman an......
  • Beane v. Dailey, No. 34630.
    • United States
    • Supreme Court of West Virginia
    • April 1, 2010
    ...such notice must be given by the issuance and service of process in the manner prescribed by law, unless waived. Barrett v. McAllister, 33 W.Va. 738, 11 S.E. 220 [1890]; Taylor v. Cox, 32 W.Va. 148, 9 S.E. 70 [1889]; Haymond v. Camden, 22 W.Va. 180 [1883]; Capehart v. Cunningham, 12 W.Va. 7......
  • Harper v. Pauley, No. 10572
    • United States
    • Supreme Court of West Virginia
    • May 5, 1954
    ...the defendant admits the agreement and renounces the benefit of the statute. Fleming, Adm'r, v. Holt, 12 W.Va. 143; Barrett v. McAllister, 33 W.Va. 738, 11 S.E. 220; Cunningham v. Cunningham, 46 W.Va. 1, 32 S.E. 998; Campbell v. O'Neill, 69 W.Va. 459, 72 S.E. 732; Blagg v. Van Sickle, 90 W.......
  • Donaldson v. Thousand Springs Power Co.
    • United States
    • United States State Supreme Court of Idaho
    • December 2, 1916
    ...purchase real estate has been granted. (Kerr v. Day, 14 Pa. 112, 53 Am. Dec. 526; Donnally v. Parker, 5 W.Va. 301; Barrett v. McAllister, 33 W.Va. 738, 11 S.E. 220; Telford v. Frost, 76 Wis. 172, 44 N.W. 835.) Sec. 2792, Rev. Codes, is penal in its nature, and must be strictly construed. (3......
  • Request a trial to view additional results
49 cases
  • Cecil v. Clark
    • United States
    • Supreme Court of West Virginia
    • April 9, 1898
    ...well as the deed, are sufficient memoranda to constitute basis for the specific execution of them against Torbett. Barrett v. McAllister, 33 W. Va. 738, 11 S. E. 220; Parrill v. McKinley, 9 Grat. 1. It is said that a certain Pickett grant for a large tract of land, older than the Chapman an......
  • Beane v. Dailey, No. 34630.
    • United States
    • Supreme Court of West Virginia
    • April 1, 2010
    ...such notice must be given by the issuance and service of process in the manner prescribed by law, unless waived. Barrett v. McAllister, 33 W.Va. 738, 11 S.E. 220 [1890]; Taylor v. Cox, 32 W.Va. 148, 9 S.E. 70 [1889]; Haymond v. Camden, 22 W.Va. 180 [1883]; Capehart v. Cunningham, 12 W.Va. 7......
  • Harper v. Pauley, No. 10572
    • United States
    • Supreme Court of West Virginia
    • May 5, 1954
    ...the defendant admits the agreement and renounces the benefit of the statute. Fleming, Adm'r, v. Holt, 12 W.Va. 143; Barrett v. McAllister, 33 W.Va. 738, 11 S.E. 220; Cunningham v. Cunningham, 46 W.Va. 1, 32 S.E. 998; Campbell v. O'Neill, 69 W.Va. 459, 72 S.E. 732; Blagg v. Van Sickle, 90 W.......
  • Donaldson v. Thousand Springs Power Co.
    • United States
    • United States State Supreme Court of Idaho
    • December 2, 1916
    ...purchase real estate has been granted. (Kerr v. Day, 14 Pa. 112, 53 Am. Dec. 526; Donnally v. Parker, 5 W.Va. 301; Barrett v. McAllister, 33 W.Va. 738, 11 S.E. 220; Telford v. Frost, 76 Wis. 172, 44 N.W. 835.) Sec. 2792, Rev. Codes, is penal in its nature, and must be strictly construed. (3......
  • Request a trial to view additional results

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