Goddin v. Vaughn's Ex'r
| Decision Date | 27 January 1858 |
| Citation | 55 Va. 102 |
| Court | Virginia Supreme Court |
| Parties | GODDIN v. VAUGHN'S ex'x & als. GODDIN v. MASON & als. |
1. Upon a sale of real estate, whether at public or private sale, where nothing is said about the title, the purchaser is entitled to have a clear title with covenants of general warranty.
2. But where the sale is of such a character, and made under such circumstances, as fully and sufficiently to make known to the purchaser the exact nature of the title he is to expect; as where the sale is made avowedly by an executor under the provisions of the will, or by a sheriff or commissioner under an order of the court, he can of course only demand such title as was in contemplation of the parties when the sale was made.
3. A purchaser not informed at the time of his purchase of land at auction, that the title to one moiety thereof is vested in infants, and that it can only be obtained by a suit in chancery, may, when informed of the fact, refuse to proceed with the purchase, and abandon it.
4. But if such a purchaser, upon being informed of the state of the title immediately after the sale, plainly manifests his intention to proceed with the purchase, content to take a conveyance for the one moiety which can be made at once, and to look to the court of chancery for the title to the other moiety, he thereby waives the objection which he was entitled to make for the want of a conveyance with general warranty.
5. M and V are joint owners of real estate, and they enter into an agreement in writing, that if either wishes to sell the property, he may fix a price which he will take, and if the other refuses to give it, he may have the whole property sold at auction. And in case of the death of one or both of the parties, their executors and administrators are directed to carry out the agreement as fully as though they were living. V died leaving a widow and several infant children, having made a will previous to the agreement, by which he forbade his executrix to sell any of his real estate. After V's death, M had the property sold at public auction, on terms which were satisfactory to V's representative, and which were proved to be beneficial to the children. A bill by the widow and children of V against the purchaser, for a specific execution of the contract, will be sustained, and a decree enforcing the sale will pass the title of the infants; though the proceeding does not conform to the act concerning the sale of infants' lands, nor to that concerning partitions.
6. It is not error in an interlocutory decree enforcing a specific execution of a contract against a purchaser, that it does not direct a deed to be made and tendered to him.
7. Where a decree for specific execution of a contract against a purchaser, provides that if the purchase money, or a part of it, is not paid by a day certain, the property shall be sold it is not error to appoint the counsel of the plaintiffs there being no objection to the person, the commissioner to make the sale; nor is it error to refuse to associate with him, one of the counsel of the purchaser.
8. Where the facts are all before the court, and the objection to the title to land purchased is a question of law, it is unnecessary to refer the title to a commissioner.
9. Whilst suit is pending the purchaser conveys the property in trust to secure a debt. The cestuis que trust are pendente lite purchasers, and are not necessary parties.
10. A trustee in a deed of trust to secure a debt falling due at different periods, advances to the debtor money to pay the first installment, and takes a transfer of it. He can only subject the property to satisfy him after the balance of the debt is paid; and his interest does not disqualify him from acting as trustee.
11. Where an injunction has been obtained in vacation, the defendant may file his answer and move the court to dissolve the injunction, without filing the answer either at rules or in term.
12. If exceptions to an answer are not well founded, it is not ground to reverse a decree, that they were not set down to be argued, but the cause was heard and decided without passing upon them.
Joseph Vaughn and C. R. Mason, being the joint and equal owners of the property in the city of Richmond, known as the Swan tavern, and at a later period, as the Broad street hotel they, by a writing under seal, bearing date the 14th of September 1846, entered into an agreement, by which, reciting their ownership of the property, and that death or other causes may make it necessary or advisable to sell it, they provide as follows: There was an endorsement on this agreement, which provides, that " in case either party should wish the premises sold and not wish to make an offer of what he should give, he shall have the right to say what he will take, and if not acceded to by the other, shall have a right to have the whole publicly sold to the highest bidder, by giving sufficient notice of the same."
Joseph Vaughn died in September 1849, leaving a widow and nine children, only one of whom had then attained the age of twenty-one years. His will was written in 1844, and was duly admitted to record in the County court of Hanover. By it he appointed his wife executrix of the will, " with full power and authority to receive and pay debts, and do all necessary and proper acts as I myself would, except it be to dispose of any lands or slaves, which is hereby prohibited."
In September 1854 Taylor & Williams, auctioneers in the city of Richmond, sold the said Swan tavern property at auction when Isaac A. Goddin became the purchaser thereof, at the price of twenty thousand six hundred and forty dollars, one-fourth in cash, and the balance in six, twelve, eighteen and twenty-four months. At this sale it was not announced by the auctioneer, for whom he was selling the property, and it does not appear from the evidence that Goddin knew who were the owners of it until after the purchase.
It seems to have been supposed by the vendors, that under the agreement between Mason and Vaughn, the executrix of Vaughn could make a good title to his moiety of the property; and after the sale the question of her authority to convey was submitted to counsel, who seems to have decided against it, and to have advised a suit in equity to obtain the authority of the court to confirm the contract and convey the moiety of the property. Accordingly, in March 1855 a suit was instituted in the Circuit court of the city of Richmond, by Mrs. Vaughn, as widow and executrix of Joseph Vaughn, and his nine children, eight of whom were infants, who sued by their guardian, against Isaac A. Goddin, in which they set out the joint ownership of the property by Mason and Vaughn, the agreement between them, the death of Vaughn, and the sale to Goddin; and they alleged that when the sale was made they had no doubt that Mason and the personal representative of Vaughn could make a perfect title to the property; and that possession of it was immediately delivered to the purchaser. That they are advised the title cannot be made by the executrix, and that the aid of a court of equity is therefore necessary, in order to execute the agreement between Mason and Vaughn, the execution of which would be manifestly for the advantage of both parties. They further stated that Goddin had complied with his contract with Mason, but declined to execute the contract with the plaintiffs without a decree of a court of equity. That he was however anxious to complete his contract; but if he could not obtain the moiety of the lot owned by the plaintiffs, the whole sale would be canceled, as he had purchased on the condition that he should have the whole and not a moiety. They therefore prayed for a specific execution of the contract; and for general relief.
To this bill Goddin filed an answer, admitting his purchase of the property; and averring that he was ready to comply with the contract with the plaintiffs as soon as they could make him a good title to a moiety of the property to which they were entitled, as he had no difficulty with Mason as to his moiety.
In this suit the court directed an enquiry as to whether the sale was for the interest of the infants: and the commissioner having reported that the sale was beneficial to them, the court, on the 25th of March 1855, made a decree confirming said report, and directing the contract of sale between the plaintiffs and Mason with Goddin to be specifically executed. That the executrix of Joseph Vaughn should receive of Goddin the amount due from him, and his four negotiable notes, payable in six, twelve, eighteen and twenty-four months from their date, to the said executrix; and that upon the receipt of said money and notes, she should execute a conveyance of the property to Goddin, and take from him a deed of trust upon it to secure the payment of said notes as they fell due.
In May 1855 the executrix of Joseph Vaughn reported to the court that Goddin had failed to comply with the decree; and it was ordered that an attachment should issue against him, unless, upon being served with a copy of the order, he should show cause against it on the 18th of the month. This motion was continued at the instance of the defendant until the 14th of June, when the defendant made his return to the rule, objecting to the title which he was required to take under the decree; insisting that...
To continue reading
Request your trial
-
Payne v. Payne
...thereby. Garland, etc., v. Loving, etc., 1823, 1 Rand. 396, 22 Va. 396; Daniel v. Leitch, 13 Grat. 195, 54 Va. 195; Goddin v. Vaughn's Ex'x, 14 Grat. 102, 55 Va. 102; Smith v. White, 107 Va. 616, 59 S.E. 480; Robinson v. Shepherd, 137 Va. 687, 120 S.E. 265. The case of McAllister v. Harmon,......