Cranford v. Hubbard

• Decision Date: 22 April 1968
• Citation: 208 Va. 689,160 S.E.2d 760
• Parties: Mary Helen CRANFORD v. Marye HUBBARD.
• Court: Virginia Supreme Court

Page 760

160 S.E.2d 760

208 Va. 689

Mary Helen CRANFORD v. Marye HUBBARD.

Supreme Court of Appeals of Virginia.

April 22, 1968.

Paul Lee Sweeny, Washington, D.C., for appellant.

Nathan L. Silverberg, Washington, D.C. (Howard B. Silberberg, Washington, D.C., on brief), for appellee.

Before BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

BUCHANAN, Justice.

This is a suit in equity brought by Marye Hubbard, complainant, against Mary Helen Cranford, defendant, for the specific performance of a contract for the sale of real property.

The contract was dated July 26, 1963, and by it the defendant, Cranford, for a consideration of $1,000.00, agreed to sell to complainant, Hubbard, 'or assigns,' the property 'at the northeast corner of Route 1 and Gunston Hall Road (Rt. 242), Fairfax County, Virginia, containing approximately 7.097 acres. Further described as parcel 135, double-circle 1, Fairfax County Real Estate Assessment plat 113.' The exact acreage was to be determined by a certified survey 'provided at the expense of the purchaser' and the price was $3,100.00 an acre.

Examination of the title, conveyancing, and all recording charges were to be 'at the cost of the purchaser,' and the contract further provided: 'The purchaser agrees to comply with the terms of sale herein within 90 days from the date of acceptance by owner or the deposit may be forfeited, in which event one-half of said deposit shall be paid to Seller, and one-half of said deposit shall be paid to Agent.'

Further provisions were that the settlement should be made at the office of Swinburne & Mountfort (attorneys) and the title was to be good of record or sale would be declared off and deposit (1,000.00) returned to the purchaser. 'However, a reasonable time shall be allowed the Seller to correct any defects reported by the title examiner.' Opposite the signatures of the parties was written 'Accepted by Owner this 28th day of July, 1963.'

The complainant, Hubbard, did not comply with the terms of sale within ninety days from the date of acceptance, and a few days after the expiration of the ninety days defendant, Cranford, gave notice that she would not convey the property, and on January 29, 1964, complainant Hubbard filed this suit against defendant Cranford.

Defendant appeared specially and filed motions to dismiss, which were overruled, and an answer. The court then heard evidence Ore tenus and thereafter entered its decree granting specific performance and directing the defendant to perform the contract and convey the property to the complainant. This appeal by the defendant followed.

The defendant makes twenty-three assignments of error, one of which challenges the jurisdiction of the court to entertain the suit. The defendant was a nonresident of Virginia. She lives in Montgomery county, Maryland, and was there served with process on March 17, 1964. Such service has the same effect as an order of publication duly executed, Code § 8--74, and upon any trial or hearing under said section 'such judgment, decree or order shall be entered as may appear just', Code § 8--75.

In Clem v. Given's Ex'r., 106 Va. 145, 55 S.E. 567, specific performance of a contract for the sale of real estate was ordered against a nonresident proceeded against by order of publication. It was said in the opinion that Arndt v. Griggs, 134 U.S. 316, 10 S.Ct. 557, 33 L.Ed.2d 918, is an instructive case 'and it leaves no room to doubt the power of the states to provide substituted process in all proceedings relating to or affecting the titles to lands within their respective limits.' 106 Va. at 148, 55 S.E. at 568. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, was cited on the point that personal service within the jurisdiction, or a general appearance, is necessary to the validity of a proceeding In personam; but the court added: 'If, on the other hand, the proceeding be In rem, or Quasi in rem, where the Res to be affected by the litigation is within the jurisdiction of the court, notice by publication is ordinarily sufficient.' 106 Va. at 147, 55 S.E. at 568.

The language of the decree in the present case makes it an In personam decree and hence it goes beyond permissible limits. If the complainant is entitled to any relief, it should be of an In rem nature and accomplished by the appointment of a commissioner as provided by Code § 8--670.

Defendant's other assignments of error include one or more to the holding that the complainant's delay in performing her part of the contract did not bar her from having specific performance by the defendant, and this is the decisive issue in the case.

The facts of the case are obscured rather than revealed by the printed record. It is made up of excerpts taken here and there from the testimony and frequently without meaning except by reference to the transcript of the testimony, which itself contains about as much argument as evidence and requires searching to ascertain who is asking and who is answering.

The evidence bearing on the stated issue as screened from the printed record plus the transcript may be fairly stated as follows:

In June, 1963, the defendant, owner of the property, telephoned attorney Mountfort, who had previously represented her in some other matters, and told him that a relative had presented to her a contract for the sale of the property at $2,500.00 an acre. She inquired whether Mountfort could get her more than that for it and requested him to look at the property. Mountfort and his partner, Swinburne, examined the property and then called Kincaid, 'who deals in property'. Kincaid looked at it and made a report, the contents of which are not shown.

Afterwards, 'the purchasers' presented a contract at a price of $3,000.00 an acre. Defendant changed the price to $3,100.00 per acre. The contract was executed by both parties and was filed as an exhibit. While the contract was executed by complainant Hubbard, she acted for her associates as well. They were Weissberg, a real estate developer, her employer, whose interest in the transaction was seventy percent, and Kincaid, whose interest was twenty percent. The complainant's interest was ten percent.

Attorneys Swinburne and Mountfort were employed by the purchasers to examine the title and by letter dated August 15, 1963, Mountfort sent to defendant Cranford the check of his firm for $1,000.00 'representing the deposit posted by the purchaser of your property.'

When the contract was originally presented to defendant Cranford, it provided that the purchaser should comply with its terms in 180 days. Defendant complained about that. She said, 'That was six months and it was too long for me.' Mountfort asked what she wanted and she replied that she wanted it changed to ninety days, and it was changed that way. This change was agreed to by Mrs. Hubbard and she initialed the change to evidence her acceptance. The contract had been brought to her by Kincaid and she had signed it on July 26, 1963.

By the terms of the contract, as stated, the complainant agreed to comply with its terms of sale within ninety days from the date of acceptance by the defendant owner. The date of defendant's acceptance, as shown on the face of the contract, was July 28, 1963. Ninety days from that time was October 26, 1963. The defendant and her associates did not comply with the terms of contract on that date or before that date. They made no request for an extension of time and no explanation of their failure to comply.

The defendant testified that around the...