Boston v. Shackelford

• Decision Date: 14 June 1934
• Citation: 175 S.E. 625
• Parties: BOSTON. v. SHACKELFORD et al.
• Court: Virginia Supreme Court

175 S.E. 625

BOSTON.

v.SHACKELFORD et al.

Supreme Court of Appeals of Virginia.

June 14, 1934.

Rehearing Denied Sept. 25, 1934.

GREGORY, J., dissenting.

Appeal from Circuit Court, Orange County.

Suit by J. W. Boston against Virginius R. Shackelford and another. From a decree confirming a report of a commissioner in favor of respondents, petitioner appeals.

Reversed.

Argued before HOLT, EPES, HUDGINS, GREGORY, and CHINN, JJ.

McGuire, Riely & Eggleston, of Richmond, for appellant.

S. M. Nottingham, of Orange, for appellees.

HOLT, Justice.

This suit is a sequel to or a continuation of the cause of Boston v. De Jarnette et al., brought in the circuit court of Orange county, and there decided on May 5, 1928. An appeal was taken to this court, and that judgment was affirmed on January 16, 1930. It is reported in 153 Va. at page 591, 151 S. E. 146.

John T. Boston died many years ago intestate, seized and possessed of 723½ acres of land valuable for timber on it and lying partly in Louisa and partly in Orange county. He left to survive him a widow, who died in 1911, and six children, viz.: John W. Boston, C. M. Boston, Seymour Boston, Mrs. Lillie Leighton, Mrs. Annie Tenney, and Mrs. Mary Clark. These children by inheritance each took a one-sixth interest in their father's estate.

C. M. Boston, who lived near by, in a general way looked after the interests of his brothers and sisters. A sale was discussed, and he, under the impression that he was authorized to act, placed this land in the hands of a real estate agent, W. W. Briggs, at the price of $15,000. That authorization was in writing and bore date May 4, 1918. The option ran for 30 days, and was afterward extended until June 16. Briggs finally came to an agreement with De Jarnette and Shackelford, who agreed to purchase at the price named. A deed was tendered defective in certain particulars not necessary to elaborate. In the meantime the purchasers began cutting timber. In August following John W. Boston, Seymour Boston, Mrs. Lillie Leighton, Mrs. Annie Tenney, and Mrs. Mary Clark filed their bill in chancery in which they asked that this cutting of De Jarnette and Shackelford be enjoined and that they be made to pay for damages done. There was an answer and cross-bill and an amended answer and crossbill in which these purchasers asked specific performance of their contract of purchase upon payment of the $15,000 purchase price agreed upon. Specific performance Was vigor ously protested by all of the owners except C. M. Boston, who said that he was willing to stand by his bargain and to convey his interest whenever he was paid one-sixth of the sum promised. While this suit was pending, J. W. Boston acquired by purchase the interest of his sister, Mrs. Tenney. Seymour Boston died, and his brothers and sisters took his interest by inheritance. The trial court held by decree of May 5, 1928, that C. M. Boston and J. W. Boston, who were then the owners, respectively, of a one-sixth and of a two-sixths interest, and of whatever they took by inheritance from their brother Seymour, were bound by their contract of sale, and decreed specific performance as to them, so far as their one-sixth and two-sixths interests, respectively, were concerned; the language of the decree being:

"II. That upon the payment by said V. R. Shackelford and E. H. De Jarnette, Jr., or by some one for them, to said C. M. Boston of the sum of $2,500 but without interest thereon said C. M. Boston shall sign, seal, acknowledge and deliver a deed, in sufficient and legal form and containing a covenant of general warranty and other usual covenants of title, conveying to said V. R. Shackelford and E. H. De Jarnette, Jr., a one-sixth undivided interest in said tract of land according to the proper description of said land as shown of record, or as may be otherwise made to appear.

"III. That, it appearing to the court that, pending this litigation, said J. W. Boston has acquired by purchase, and has had duly conveyed to him of record, the original one-sixth undivided interest in said tract of land of his sister, Annie Tenney, and that in consequence he now owns a one-third undivided interest in said land, exclusive of the interest now held by him as one of the heirs at law of said Seymour Boston, deceased, upon the payment to said J. W. Boston by said V. R. Shackelford and E. H. De Jarnette, Jr. or by some one for them, of the sum of $5,000 but without interest thereon, said J. W. Boston shall sign, seal, acknowledge and deliver a deed, in sufficient and legal form and containing a covenant of general warranty and other covenants of title, conveying to said V. R. Shackelford and E. J. De Jarnette, Jr., a one-third undivided interest in said tract of land according to the proper description of said land as shown of record, or as may be otherwise made to appear.

"IV. That the amended answer and crossbill of said V. R. Shackelford and E. H. De Jarnette, Jr., filed therein on July 7, 1922, sofar as treated as cross-bill, be and it is hereby dismissed.

"V. That said C. M. Boston is hereby directed to pay to W. W. Briggs one-third of said sum $250 or the sum of $88.33, and that said J. W. Boston do likewise pay to said W. W. Briggs two-thirds of said sum of $250 or $166.67.

"VI. That the complainants C. M. Boston, J. W. Boston, Mary Clark, Lottie Leighton and Annie Tenney, as heirs at law of Seymour Boston, deceased, and said Mary Clark and Lottie Leighton, with respect to their original respective one-sixth undivided interests in said tract of land, do recover of said V. R. Shackelford and E. H. De Jarnette, Jr., all costs expended by them in the prosecution of this suit; and that said V. R. Shackelford and E. H. De Jarnette, Jr., do recover of said C. M. Boston, J. W. Boston and Annie Tenney all costs expended by them in the prosecution of this suit."

This decree, as we have seen, was affirmed by this court on January 16, 1930 (153 Va. 591, 151 S. E. 146, 149). The mandate of the court probably went down about the end of that month. At the hearing it was suggested that the contract of sale made through Briggs was joint and not severable. That suggestion this court settled in this way:

"The last contention of appellants is that, even if the deed could be given effect as a contract to convey, as to the parties who signed it, the transaction would yet fail, for the reason that none of the heirs could be held bound to a sale, except upon the joint action of all the others. It was stated at the bar of this court by counsel, that in the event this court refused to sustain their contention that a specific performance on the part of all the heirs should be decreed, the appellees were willing to conform to the decree of the lower court."

C. M. Boston did, on May 30, 1930, deliver an acceptable deed, and was paid in full. Therefore we are here only concerned with J. W. Boston's one-third interest.

While suit was pending and in 1926, the timber was injured by fire charged against the C. & O. Railway. On February 7, 1930, Mr. De Jarnette wrote to Mr. Riely, counsel for the Bostons, calling attention to this claim for damages and suggesting that a joint suit be brought. He also called attention to the fact that "one of the parties against whom the decree was entered has placed a deed of trust for $2,000 on her interest and we will of course expect this lien to be satisfied as well as any other liens which may be against the property at the time the transaction is closed."

Mr. Riely replied on February 8 to the effect that he had already advised his clients that they were required to convey their respective interests upon payment of the sum of $7,500. He said that he knew nothing about the trustee debt of $2,000, but presumed that it would be taken care of in the final settlement. He asked if the fire referred to was one that had already been discussed and promised to take up that matter with his clients.

On February 14 Mr. De Jarnette wrote that the fire was that referred to in the original suit. On February 15 Mr. Riely replied that he would communicate with his clients as soon as possible with a view to closing the transaction, and would at the same time take up with them the claim for damages from this fire.

On March 6 Mr. Riely wrote to Mr. Shackelford inquiring if he and Mr. De Jarnette would care to consider a buy or sell proposition, and suggested a conference. Mr. Shackelford replied on March 7, saying that they were not interested in such a proposition, but that, if the Bostons were prepared to submit a concrete figure, they would come to Richmond the next week to consider it. Receipt of that letter was acknowledged by Mr. Riely on March 8. On March 14 he wrote to Mr. Shackelford saying that his clients were willing to sell their outstanding one-half interest for $10,000. On March 28, 1930, Mr. Riely again wrote to Mr. Shackelford and said that he had received no reply to his letter of the 14th, that his clients were ready to close up the matter in accordance with the court's decree, and that, regardless of the offer contained in the letter of March 14, he would like at an early date to have a conference and arrange for carrying it out. On March 31 Mr. Shackelford wrote that they were not interested in purchasing the outstanding interest at the price named, but would consider its purchase for $7,500. He further suggested that, if this figure did not interest the Boston heirs, a deed for a one-half undivided interest be sent on with draft attached for the proper amount with instructions to the bank to hold it for a few days that the title might be brought down to date. He said that the Tenney lien would have to be released, the Briggs judgment taken care of, and costs taxed. On April 1 Mr. Riely replied saying that he did not think his clients would be interested in the $7,500 offer, but would communicate with them. He further said:

"With respect to a closing of the transaction pursuant to the decree of c...