Improved Realty Corp. v. Sowers

• Decision Date: 30 November 1953
• Citation: 78 S.E.2d 588,195 Va. 317
• Court: Virginia Supreme Court
• Parties: IMPROVED REALTY CORPORATION v. R. PINKNEY SOWERS, EXECUTOR OF R. L. SOWERS, DECEASED

Page 588

78 S.E.2d 588

195 Va. 317

IMPROVED REALTY CORPORATION v. R. PINKNEY SOWERS, EXECUTOR OF R. L. SOWERS, DECEASED.

Supreme Court of Appeals of Virginia

November 30, 1953.

Stuart G. Christian and W. Moscoe Huntley, for the appellant.

William Eldridge Spain and William Old, for the appellee.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

This is a suit for the specific performance of a written contract for the sale of real estate. It was brought by R. L. Sowers, the vendor, herein called complainant, who thereafter died, and his executor, the present appellee, was substituted. It was brought against Improved Realty Corporation, the appellant, herein called defendant, which was owned by R. L. Brown and J. A. Schwalm. The court below heard the evidence ore tenus and for reasons stated in a written opinion held that the complainant was entitled to specific performance of the contract and granted judgment against the defendant for the contract price, to be paid on delivery of a proper deed. The defendant appealed.

In March, 1948, there appeared in a Richmond newspaper an advertisement headed 'Sportsmen . . . here's the grist of the story . . .' and continuing thus: 'Looking for a business-pleasure combination? This unique property consists of a 75-acre fish pond plus 50 acres of good, dry land. ' A short description of the property followed, after which was this: 'Think over the first part: A 75-ACRE FISH POND!'

The advertisement attracted the attention of Brown and Schwalm, who for some time had been looking around for a fishing pond to buy. The real estate agent in charge gave them directions for reaching the property and they went to examine it. R. L. Sowers, the owner, showed it to them and rowed them over the pond in his boat to its headwaters. They discussed with him the size of the pond, they testified, and he told them there were 75 acres in it, possibly 80 or 85; and that he owned to the high water mark around the pond, which included five feet.

Thereafter, on May 17, 1948, a written contract was executed by the parties by which the corporation agreed to pay $18,500 for the tract of land with improvements thereon, described as being in King and Queen county, on the road from Bruington to Shepherd's Church, containing 50 acres, more or less, with the grist mill property 'and the rights, franchises and privileges of every kind and description appertaining to the said mill property and the pond to the same. * * * Subject to any title defects that a survey may reveal. ' The terms of sale were to be complied with in 30 days, or as soon thereafter as the title could be examined, and a deed of general warranty for the property was to be delivered and the purchase money paid 'provided the title thereto be good.'

Afterwards, in June, 1948, a survey was made which disclosed that the pond contained only 20.4 acres. About that time the attorney employed to examine the title advised the defendant's counsel that in his opinion the people who owned the land adjacent to the pond had the right to use it to its center line, and 'that the title to the bed of the pond was defective or the title to the property was defective. ' Defendant's counsel advised it not to pay the purchase price and accept a deed for the property. This suit was thereupon filed in January, 1949. After a demurrer was overruled the defendant filed its answer alleging that the description of the property was insufficient and that the complainant was not able to convey the property which the defendant agreed to purchase. At the time of hearing the evidence, January 7, 1952, defendant filed an amended answer alleging a material misrepresentation as to the area of the pond.

At a pretrial conference the trial court held, over the objection of the defendant, that the contract of May 17, 1948, did not purport to convey the pond, but only the rights, franchises and privileges appertaining thereto, and since it was not clear from the contract what these were, parol evidence could be admitted to show what the parties intended them to be. In its opinion the court held they meant 'exclusive fishing rights and control of the waters of the pond for the grist mill purposes;' that the complainant had acquired and owned these rights by prescription and could perform his contract; and that the misrepresentation as to the area of the pond was was not material because the owners of the defendant corporation, who were business men of many years' experience, had themselves viewed the premises and were not misled or damaged. The assignments of error challenge these rulings.

The first and controlling question is whether the complainant owned exclusive fishing rights in the pond. While there was evidence that the defendant thought that the pond itself was to be conveyed, that position is not argued in the brief, but the defendant's contention now is that the complainant failed to prove ownership of the exclusive fishing rights.

'The burden is on the vendor who asks for the specific execution of a contract to show that he has such title as he contracted to convey. ' McAllister v. Harman, 101 Va. 17, 25, 42 S.E. 920, 923.

Under the contract of May 17, 1948, the defendant was entitled to have a clear title, reasonably free from doubts or defects which might embarrass its full and quiet enjoyment of the premises, and it will not be compelled in equity to accept a doubtful or litigious title. 19 Mich. Jur., Vendor and Purchaser, § 10, p. 315; Newberry v. French, 98 Va. 479, 36 S.E. 519; Sachs v. Owings, 121 Va. 162, 92 S.E. 997; Annotation, 57 A.L.R. 1253, at p. 1288.

The complainant had no record title to the pond. He claimed to own the exclusive fishing rights by prescription, and to prove that right he introduced three witnesses. One was L. C. Watkins, the sheriff of King and Queen County, who owned the property from 1916 to 1929, when he conveyed it to complainant and his brother. During that time the mill was operated with water from the pond; Watkins leased the fishing rights to some Richmond people; no one disputed or encroached upon his right to rent the fishing rights; during the 13 years of his ownership he claimed and asserted the right exclusively to fish in the pond; he had boats on the pond, and nobody else did, except the Mitchells 'used to water their horse in the pond and they had an old boat in there, but it rotted and they never put in any new one. This land juts up into their place -- this pond. ' He said he never at any time claimed to own the bed of the pond.

The other two witnesses were the appellee, R. Pinkney Sowers, nephew of R. L. Sowers and his sole devisee, and the former's brother, James R. Sowers. In substance they testified that from the time their father and R. L. Sowers purchased the property from Watkins, in 1929, some member of their family stayed on the place during the summer; the whole family went to the pond every week-end that the weather permitted, and some member of the family was there at least twice a month during the winter. (They lived in Chesterfield county). When the purchase was made, their father and uncle began to assert the exclusive right to fish in the pond and to control the pond; signs were posted on tree laps and posts in the pond reading 'Private Pond No Fishing;' there had never been any dispute or contest of their exclusive right to use the pond; they never allowed anybody else to have a boat; no one was allowed to fish even from the banks; at times people would slip in and fish but would run away when they approached. In 1943 the interest of their father in the property was conveyed to R. L. Sowers, who then took complete control and lived on the property...