Graham v. Call

• Court: Virginia Supreme Court
• Writing for the Court: Judge Roane pronounced the Court's opinion.
• Citation: Graham v. Call, 19 Va. 396 (1817)
• Decision Date: 07 February 1817
• Parties: Graham v. Call, Executor of Means

19 Va. 396

Graham v. Call, Executor of Means

Supreme Court of Virginia

February 7, 1817

[Syllabus Material] [Syllabus Material] [Syllabus Material]

The controversy in this case turned upon the question, whether a contract for sale of part of a lot in the city of Richmond by Graham to Means was so complete, and binding on the parties, that a Court of Equity should enforce it on a Bill for specific performance.

The Bill was filed by Daniel Call executor and devisee in trust of Robert Means, deceased, against John Graham, stating that, on the 12th of October, 1803, the defendant, for the sum of 2001. current money, sold to the said Means a specified part of Lot No. 375, and put him in possession; that Means paid the purchase money, and commenced building a house on the lot; that, on the 29th day of March, 1808, the said Graham made a farther sale to him of the residue of the same lot; as by an account, signed by the parties respectively, would appear; but the price thereof was not extended in the said account, and therefore the plaintiff was compelled to ask a discovery in relation thereto; that the said Robert Means took possession also of the last mentioned piece of ground, and, since his death, the plaintiff had paid the taxes on it; but the defendant had not yet made conveyances for the said pieces of land. The prayer of the Bill, was that the same might be sold agreeably to the directions of the Will of the Testator; that Graham might be ordered to convey them to the purchaser or purchasers; and for general relief.

The defendant by his answer admitted that he was bound to convey, with special warranty, (averring that such was the agreement,) the first mentioned part of the lot; but, as to the last, contended that no contract was made, as no price was agreed on, nor any mode adopted to fix the price; admitting, as appeared by a certificate, signed by Means at the foot of the account, as well as by his own entry therein, dated March 29th, 1808, that he had agreed to let him have it; but alleging, as appeared by the same certificate, that the price was to be thereafter agreed on; which never was done, in consequence of the death of Means in a short time afterwards. The Respondent had no knowledge, nor did he believe that any possession was ever taken by the Testator, or plaintiff.

Chancellor Taylor was of opinion that, " notwithstanding the price of the last piece or parcel of the land, in the Bill mentioned, was not fixed in the life time of the plaintiff's Testator, yet the contract might be carried into effect into a Court of Equity, since the value thereof might be ascertained, if not by the agreement of the parties, by the verdict of a Jury." He therefore decreed, " that the plaintiff do expose to sale at public auction, for ready money, the two pieces or parcels of land in the Bill mentioned, after giving thirty days notice in one or more of the Richmond newspapers; that the defendant do execute a Deed or Deeds to the purchaser or purchasers for the same with general warranty; that the plaintiff hold the proceeds of the piece or parcel of land, on which no price was fixed as aforesaid, in his hands, subject to the future order of the Court; and that he make a report of his proceedings herein."

Afterwards, upon a Report accordingly made and approved by the Chancellor, he farther decreed, that a Jury be empaneled before the Hustings Court of the City of Richmond, to ascertain what, on the 29th day of March, 1808, was the value of the said piece of lot, No. 375, sold by the defendant to the plaintiff's Testator on that day; and, it appearing by the Report aforesaid, that the defendant John Graham was the purchaser at the sale of those parts of the lot, the price of which was not extended as before mentioned, and that the said Graham was to pay 3700 dollars agreeably to his purchase; and the Jury having by their verdict fixed the value of the same, as of the 29th of March, 1808, at 1250 dollars, which, with interest to the day of sale, amounted to 1646 dollars and 45 cents, leaving a balance due from the defendant to the plaintiff of 2053 dollars, and 55 cents, with interest from the day of sale; the Chancellor farther decreed, that the defendant (who had retained the same in his hands with the consent of the plaintiff) pay to the said plaintiff the said last mentioned sum, with legal interest thereon from the day of sale; and that each party pay the costs of this suit, agreeably to their respective interests in the subject.

To this decree the defendant obtained a Writ of Supersedeas from a Judge of this Court; assigning error, that the Court of Chancery ought not to have directed an issue to ascertain the value of the parts of Lot No. 375, nor finally to have decreed in favour of the plaintiff as to the same; but should have dismissed the Bill as it related thereto; because no possession was ever delivered thereof to the plaintiff's...