Dunsmore v. Lyle Et Ux

• Decision Date: 29 January 1891
• Citation: 12 S.E. 610,87 Va. 391
• Parties: Dunsmore . v. Lyle et ux.
• Court: Virginia Supreme Court

12 S.E. 610

87 Va. 391

Dunsmore .

v.Lyle et ux.

Supreme Court of Appeals of Virginia.

Jan. 29, 1891.

Specific Performance—Evidence.

On a bill for specific performance of an alleged contract to convey land, it appeared that defendant's wife was unwilling to join in the conveyance, of which defendant informed plain-tiff, and promised to do what he could to persuade his wife, but neither party proposed to conclude the sale without her consent. Afterwards defendant's wife refused to join in the deed. Plaintiff then proposed to make the cash payment, and take the deed, as a means of bringing the wife over, but he did not propose to accept the deed subject to her right of dower. Defendant would not agree to this, saying that he had never proposed to coerce his wife. Defendant testified that all their negotiations were subject to the question of his wife's consent, while plaintiff testified to a definite contract. Held, that there was not such distinct proof of the alleged contract as would sustain a decree for specific performance. Richardson, J., dissenting.

White & Gordon, for appellant.

Lacy, J. This an appeal from a decree of the circuit court of Augusta county, rendered on the 18th day of June, 1890. The bill was filed by the appellant against the appellees to enforce specific performance of an alleged contract for the sale of a tract of land, belonging to the said Lyle, to the appellant, Dunsmore. Upon the hearing, upon the demurrer, answer, and plea of the defendants, and the depositions taken on both sides, the circuit court dismissed the bill of the plaintiff, whereupon he applied for and obtained an appeal to this court.

The principles upon which courts of equity decree specific performance of contracts for the sale of real estate are well understood and familiar to the profession; yet it will be convenient, in the view we have taken of this case, to briefly recur to first principles. And we will remark that it is one of the principles of equity that it looks upon things agreed to be done as actually performed; and consequently, as soon as a valid contract is made for the sale of an estate, equity considers the buyer as the owner of the land, and the seller as a trustee for him; and, on the other hand, it considers the seller as the owner of the money, and the buyer as a trustee for him. And when a contract has been made, and either party refuses to perform the agreement, equity enforces the performance of the contract specifically, by compelling the refractory party to fulfill his engagement according to its terms. Thus, if the vendor refuses to convey, equity will decree a conveyance, and attach him until he makes it. All applications to the court to compel specific performance, however, are addressed to the discretion of the court, —a sound judicial discretion, regulated by the established principles of the court; and the contract must not only be distinctly proved, but it must be clearly and distinctly ascertained. It must be reasonable, certain, legal, mutual, upon valuable, or at least meritorious, consideration, and the party seeking specific performance must not have been backward, but ready, desirous, prompt, and eager; while a purchaser, however, cannot be compelled to take a defective title, but has a right to insist upon a clear legal title. On the other hand, though the vendor cannot make the title he contracts to make, yet he may be compelled to convey such title as he has, and to compensate for the defect; nor does it lie in him to object for the want of a com plete title in him. The remedy of specific performance of contracts for the sale of real estate, to which it chiefly relates, falls within the inference of statutes of frauds which declares void all contracts for land which are not reduced to writing, and signed by the party sought to be charged. No proceedings in specific performance can, of course, be had, unless it be shown that a contract has actually been concluded. If the arrangement come to was in its nature merely honorary, or if the matter still rest in treaty, no specific performance can be granted. On the other hand, however, when the contract is embodied in a formal document, simultaneously entered into by both parties, little difficulty can occur as to whether the contract was concluded. But this question frequently arises, when a contract is alleged to have been constituted by the negotiations of the parties. If, however, it be only doubtful whether the contract was concluded or still remained open, the court will refuse specific performance, and leave the parties to their rights at law. Owen v. Davies, 1 Ves....