Graybill v. Braugh

• Decision Date: 20 April 1893
• Citation: 89 Va. 895,17 S.E. 558
• Court: Virginia Supreme Court
• Parties: GRAYBILL et al. v. BRAUGH.

17 S.E. 558

89 Va. 895

GRAYBILL et al.

v.BRAUGH.

Supreme Court of Appeals of Virginia.

April 20, 1893.

Specific Performance—Mutuality—Dower.

1. A unilateral contract for the sale of land, reciting a nominal consideration of one dollar, but in fact entered into without any consideration, binding the vendor to convey the land within 10 months from date, at the vendee's option, but expressly exempting the vendee from all obligation to purchase, will not be specifically enforced in equity, since there is no consideration and no mutuality.

2. A contract for the sale of land entered into by a married man, will not be specifically enforced where the wife did not sign the contract, and refuses to join in the deed, and release her dower interest, unless the purchaser is willing to pay the full purchase price, and accept the deed without her joining.

Appeal from circuit court, Botetourt county.

Bill by E. J. Braugh against Mary W. T. Graybill and others for the specific performance of a contract for the sale of land. From a decree in complainant's favor, defendants appeal. Reversed.

E. & E. N. Pendleton, for appellants.

Benj. Haden, for appellee.

FAUNTLEROY, J. This is an appeal from decrees of the circuit court of Botetourt county, rendered on the 20th day of May, 1890, and the 27th day of January, 1891, in a chancery suit in said court depending, in which E. J. Braugh is complainant and Mary W. T. Graybill and Lewis H. Graybill, her husband, and A. Nash Johnston, are defendants. It appears from the record in this case that on the 12th day of March, 1888, Lewis H. Graybill bought of J. H. H. Figgatt, special commissioner of the circuit court of Botetourt county, in the cause therein pending of J. P. Thrasher vs. Brierly and others, a tract of land in Botetourt county, Va., containing about 50 acres; that on the 3d day of February, 1890, before the purchase money had been paid, and before any deed had been made to Graybill for the laud, the said Graybill gave to E. J. Braugh an option in writing and under seal for the purchase of this land by Braugh for the nominal consideration of one dollar, but, in fact, nothing, it is admitted, was ever paid to Graybill by Braugh, not even the one dollar for the said option. On the 20th of March, 1890, J. H. H. Figgatt, the commissioner aforesaid, upon the payment of the purchase money for the land by the judicial purchaser, Lewis H. Graybill, conveyed the land to Mary W. T. Graybill, the wife of Lewis H. Graybill, by the direction of said Graybill, as he was ordered by the decree of sale to do. On the 22d of March, 1890, Lewis H. Graybill and wife conveyed this land to A. Nash Johnston for $2,000. At the time of this purchase Johnston was informed that Lewis H. Gray bill had given an option to E. J. Braugh on this land for the period of 10 months from February 3, 1890, but that nothing had been paid by Braugh on said option, and that it bound Braugh to pay or do nothing whatever, and it was therefore not binding on Lewis H. Graybill. At the April rules, 1890, of the circuit court of Botetourt county E. J. Braugh filed bis bill in this suit, asserting the said option as a binding contract, which he prayed to have specifically performed, and that the deed from J. H. H. Figgatt, commissioner, to Mary W. T. Graybill, and the deed from Lewis H. Graybill and Mary W. T. Graybill, his wife, to A. Nash Johnston, be set aside, vacated, and annulled, and charging Mrs. Graybill, Lewis H Graybill, A. Nash Johnston, and J. H. H. Figgatt, commissioner, with notice of his option, and with fraud in the execution of the deeds aforesaid.

The said parties filed their demurrers and answers, and denied the allegations and equities of the bill, and the circuit court of Botetourt county, by the decrees complained of, decided that both Mrs. Graybill and A.Nash Johnston had notice of the said option at the time of receiving their respective deeds, and that said option is an enforceable contract, and binding on all the parties, including A. Nash Johnston, and directing A. Nash Johnston to convey the land to E. J. Braugh, without retaining a lien on the land, upon the payment by E.J. Braugh of the cash payment and first deferred payment, and executing bonds for the second and third deferred payments of the purchase money, "with security approved by the clerk of this court, " etc., "thereby sub...