Jarrett v. Johnson
| Decision Date | 25 July 1854 |
| Citation | 52 Va. 327 |
| Parties | JARRETT v. JOHNSON. |
| Court | Virginia Supreme Court |
Absent ALLEN and DANIEL, Js.
1. Where there is a joint purchase of land by two, to whom it is conveyed, and who give their bond for the purchase money; in the absence of proof of any agreement between them to the contrary, they are entitled to the land in equal proportions.
2. One of the purchasers having previously made a conditional contract for the purchase of the land, agreed in writing with the other, that if the contract was completed this other should have a specified part of the land: but the contract was not completed. This agreement between the purchasers was then at an end, and cannot affect their rights under their joint purchase.
3. In such case of a joint purchase parol evidence is not admissible to prove an agreement between them for an unequal division of the land.
4. In such a case the purchaser claiming to be entitled under an agreement between them, to the largest portion of the land files a bill for a specific performance of the agreement, and for partition accordingly: Though he fails in this, the court may go on to make a partition according to the legal rights of the parties.
By an agreement under their hands and seals, between James McDowell of Rockbridge and Barnabas Johnson, bearing date the 8th day of September 1849, McDowell contracted to sell to Johnson a tract of land containing about eight hundred acres, lying in the county of Monroe, upon the Greenbrier river and Wolf creek, for the sum of nine thousand dollars; to be paid one-third by the 10th of October 1849, and the balance in two equal annual payments, with interest from this last date. But it was provided that this agreement should not be absolute and conclusive upon either of them before the 1st of October 1849; up to which time each of them should have the right to withdraw from it, by giving to the other a written notice to that effect. But if McDowell withdrew from it because some higher price was offered him for the land than that contracted to be given, he should in that case first offer the refusal of it to Johnson, before he should have the right to sell to any other person.
On the 26th of September 1849 an agreement, also under the seals of the parties, was entered into between Barnabas Johnson and James Jarrett, by which they agreed to divide the land that Johnson had conditionally purchased of McDowell. If Johnson should get the land, Jarrett was to have the river end of the land; the dividing line to be the middle of the turnpike commencing at the river near to Newman's canal landing opposite the turn of the turnpike; thence with the turnpike through the land; and he was to pay his proportion of the purchase money according to the number of acres he should get.
Within the time prescribed in the agreement between McDowell and Johnson, McDowell declined to execute the contract, and gave notice thereof to Johnson; and he was not induced to this course by the offer of a better price for the land by any other person. Having declined to execute the contract with Johnson, McDowell, on the 15th of October 1849, executed a power of attorney, whereby he authorized Robert J. Taylor to investigate and settle, as he might think just, a certain claim or obligation in writing which James Jarrett alleged that he held upon McDowell for the sale to him, upon specified terms and conditions, of his land in Monroe county on Greenbrier river and Wolf creek. And he also authorized his said attorney to enter into a written contract with said Jarrett, or with any other person, for the full and complete sale to him, or any of them, of the said land; upon certain terms as to the purchase money, which was not to be less than nine thousand five hundred dollars. Taylor states, That in October 1849 he carried a letter from McDowell to Jarrett and told him that the land was up again for sale, and made to him a proposition for the sale of it to him; but he declined making any offer until Taylor had seen or was done with Mr Johnson. That he went to see Johnson and made him several propositions; but he declined all the offers made to him. That the next day Jarrett, Johnson and himself all met on the land. Johnson was asked if he was done, and declared he had gone as far as he could go, in the conditional purchase he had made of McDowell. That several propositions then passed between Taylor and Jarrett, all of which were declined, and Jarrett said he was off. Jarrett and Johnson then held a private conference between them; and after it was over Johnson came up to Taylor and said that he and Jarrett would take the land at nine thousand five hundred dollars. This proposition was accepted; and by an agreement bearing date the 20th day of October 1849, executed by the three, McDowell by his said attorney sold to Jarrett and Johnson the tract of land aforesaid for the sum of nine thousand five hundred dollars, for the deferred payments of which Jarrett and Johnson agreed to execute their bonds. And by deed bearing date the 5th of November 1849, McDowell conveyed the land to Johnson and Jarrett.
Immediately upon the purchase of the land there was a controversy between Johnson and Jarrett as to how the land should be divided between them: Johnson insisted that Jarrett was to have only that part lying north of the turnpike road, which he was to have under the first agreement between them; and Jarrett insisted that he was entitled to one-half of the land. In July 1850 Johnson instituted a suit in the Circuit court of Greenbrier county against Jarrett for a partition of the land. In his bill he set out his first contract with McDowell and his agreement with Jarrett. And he stated that he proceeded to close his contract with McDowell through Taylor the agent of McDowell, by adding something to the price. That relying upon the agreement between himself and Jarrett, he took from McDowell a title bond binding him to convey the land jointly to Jarrett and himself. That he never dreamed of any other partition than that indicated by the article between Jarrett and himself; nor did Jarrett utter a syllable to show that he looked to any other arrangement. But that notwithstanding all this Jarrett had taken possession of and held a part of the land which, by the terms of the agreement, was to be allotted to the plaintiff. That McDowell had conveyed the land to Jarrett and the plaintiff; but that though Jarrett is thus vested with an undivided moiety of the land, he must be considered as the owner of only that part of the land which under their written agreement he was to have, and as to all over that he held it in trust for the plaintiff. He asks for a partition of the land according to the agreement, an account of the profits, and for general relief.
Jarrett answered the bill. He insisted that Johnson's conditional purchase of the land had been set aside. That afterwards McDowell had authorized Taylor to sell the land to the defendant or any other persons. That under this authority Taylor had sold to the plaintiff and defendant. He denied that the conditional contract between McDowell and Johnson had been carried into effect; or that the plaintiff made any purchase for himself; or that the agent of McDowell sold to him individually. He said that the plaintiff did not propose to purchase the land on his individual account; nor did he assert any right whatever to take the land for himself at the higher price demanded by McDowell. That the price of the land and terms of sale were adjusted by the agent of McDowell, the plaintiff and defendant; and that the purchase was a joint one in which the plaintiff and defendant had an equal interest, each entitled to a moiety. And he denied that there was anything in his language or conduct which could induce the plaintiff to suppose that he regarded the written agreement between himself and the plaintiff as in force, or as regulating in any manner whatever their interest in the land purchased by them.
In October 1851 the court made an order directing Commissioner Cary, among other things, to ascertain and report to the court what was the agreement between the plaintiff and defendant in regard to the purchase of the land in controversy, and especially the interest which each was to have in said land. And the parties were directed to appear before the commissioner and answer upon oath such interrogatories as the commissioner should propound touching the question in controversy.
In November 1851 the plaintiff filed an amended and supplemental bill, in which he charged, that at the time the plaintiff and defendant were making the purchase of the land from Taylor, they held a conference, in which the defendant desired to have more land than he was to have under the agreement of the 26th of September 1849; he desired to run up to a ditch. That the plaintiff positively dissented from the proposition or to vary the said agreement in any way so as to let the defendant cross the turnpike. That with this understanding the parties went into the contract. That the plaintiff believed that he was to have the benefit of that agreement, or he would not have engaged in the purchase. That the defendant left plaintiff so to understand; and he charges that if the defendant designed at the time to set up a claim to an equal moiety of the land, he suppressed and concealed his design, and was thereby guilty of a fraud, knowing as he did, that the plaintiff understood him differently.
Jarrett answered, admitting the conference,...
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