Miller v. Kemp

• Decision Date: 17 September 1931
• Court: Virginia Supreme Court
• Parties: JOHN M. MILLER, JR. v. GEORGE S. KEMP.

Page 178

157 Va. 178

JOHN M. MILLER, JR. v. GEORGE S. KEMP.

Supreme Court of Virginia, Staunton.

September 17, 1931.

Present, Prentis, C.J., and Campbell, Holt, Hudgins and Gregory, JJ.

1. SPECIFIC PERFORMANCE — Title Free from Valid Objections — Alleged Judgment Liens on One-Half of the Property — Case at Bar. — The instant case was a suit for specific performance. Appellee had agreed to buy the property from appellant, provided the title should be free from valid objections. Appellee asserted that certain judgments against one Paschall were liens on an undivided one-half of the land. The former owner of the property had entered into a contract to sell Paschall and one Gresham, who afterwards conveyed the property to appellant, six lots, which included the property in question. Paschall and Gresham had been in the habit of buying and selling real estate together, but had no written partnership agreement. Before the contract between Paschall and Gresham, on the one hand, and the former owner, on the other, was executed, its provisions were waived, changed or rescinded by the parties, and the transfer of title from the former owner, instead of being made to Gresham and Paschall jointly, was made separately to Gresham, Paschall and another, and these conveyances were accepted by the parties in discharge of the original executory contract of sale between the former owner and Paschall and Gresham. The deed from the former owner to Gresham was signed by Paschall and wife, as parties of the third part, but was not acknowledged by them, and contained the following language: "And the said parties of the third part sign and seal this deed for the express purpose of waiving any and all rights and claims that they have, or may have, under a certain written contract with the party of the first part affecting the said three lots hereby conveyed and of consenting to the conveyance of said three lots to said Thomas Gresham." The only effect of this clause relating to the waiver by Paschall and his wife was to supply notice of a pre-existing contract, while its avowed purpose was to assure Gresham that all such rights, as might have previously existed, or might have arisen thereunder, had been abrogated — satisfied. It clearly was not notice of any possible adverse claim of Paschall.

2. VENDOR AND PURCHASER — Interest in Unperformed Executory Contract May be Waived by Parol. — An interest in an unperformed executory contract for the sale of land may be waived by parol.

3. VENDOR AND PURCHASER — Unperformed Executory Contract for Sale of Land — Contract Held Not to Have Been Executed — Case at Bar. — In the instant case defendant in a suit for specific performance claimed that the title to the land in question was not free from valid objections, as an undivided one-half of the land was subject to certain judgments against one Paschall. Paschall and complainant's predecessor in title had an executory contract with the former owner of the land to buy the land. The trial court sustained the contention that this contract was executed before the deed to the land in question was delivered to complainant's predecessor in title, but the evidence and the several deeds showed the contrary.

4. VENDOR AND PURCHASER — Judgment Liens — Equitable Interest in Land. — Where the recitals of a deed under which a purchaser claims show that a third person was formerly the equitable owner of the land, such purchaser is charged with notice of that fact, and the land is bound in his hands for prior judgments against such equitable owner which have been duly docketed.

5. VENDOR AND PURCHASER — Judgment Liens — Equitable Interest in Land — Case at Bar. — The instant case was a suit for specific performance. Defendant claimed that complainant's title was defective in that it was subject to judgment liens against one Paschall, but there were no judgments against Paschall at the time of the recordation of the conveyance to complainant's predecessor in title, and no judgment recovered against Paschall since that conveyance was recorded could possibly affect complainant's title.

6. JUDGMENT LIENS — What the Judgment Lien Reaches — Transfer of Judgment Debtor's Interest to an Innocent Purchaser. — The lien of a judgment reaches far. It reaches every interest of the judgment debtor in land which the record of the title shows that he had, either before or after the judgment was docketed, even though he has in fact transferred his interest to an innocent purchaser before the judgment was docketed, unless the record itself shows such previous transfer by deed duly recorded.

7. JUDGMENT LIENS — Debtor's Present or Former Title to the Land. — It is always necessary to show the judgment debtor's present or former title to the specific land before the lien attaches.

8. SPECIFIC PERFORMANCE — Title Free from Valid Objections — Alleged Judgment Liens on One-Half of the Property — Case at Bar. — The instant case was a suit for specific performance. Appellee had agreed to buy the property from appellant, provided the title should be free from valid objections. Appellee asserted that certain judgments against one Paschall were liens on an undivided one-half of the land. The former owner of the property had entered into a contract to sell Paschall and one Gresham, who afterwards conveyed the property to appellant, six lots, which included the property in question. Paschall and Gresham had been in the habit of buying and selling real estate together, but had no written partnership agreement. Before the contract between Paschall and Gresham, on the one hand, and the former owner, on the other, was executed, its provisions were waived, changed or rescinded by the parties, and the transfer of title from the former owner, instead of being made to Gresham and Paschall jointly, was made separately to Gresham, Paschall and another, and these conveyances were accepted by the parties in discharge of the original executory contract of sale between the former owner and Paschall and Gresham. The liens of judgments against Paschall were not liens upon the land which complainant agreed to sell defendant, because it was so clearly shown by the record chain of title that Paschall never had or became possessed of or entitled to it at any time either before or after the judgments, which under Code 1919, section 6470, is essential before the lien can attach.

9. VENDOR AND PURCHASER — Executory Contracts — When Executory Contract Becomes Executed — Case at Bar. — In the instant case a contract of sale was in its inception executory. It could not become an executed contract until the purchase price had been paid and the owner had delivered its deed conveying the subject of the sale.

10. VENDOR AND PURCHASER — Vendee in Equity Owns the Land — Legal Rights and Liens. — Under a contract for the sale of land, in equity the vendee owns the land and the vendor is entitled to the purchase money, but this is an equitable doctrine and cannot be invoked as conclusively determining all legal rights and liens of others. That this is true is apparent, for judgments against the vendor docketed before his conveyance to the vendee is recorded continue to be liens upon the land.

11. VENDOR AND PURCHASER — Equitable Title — Equitable Rights. — It may be that an equitable title which is disclosed in the chain of title by the record can only be conveyed by deed duly recorded, but this is not true of mere equitable rights under unexecuted contracts not so disclosed.

12. VENDOR AND PURCHASE — Executory Contract — Right of Parties to Rescind, Abrogate, Amend, or Change the Contract by Parol. — The original parties to an executory contract for the sale of land have the right and power to rescind, abrogate, amend, or change the contract by parol, subject to the rights of third parties.

13. VENDOR AND PURCHASER — Executory Contract — Right of Parties to Rescind, Abrogate, Amend, or Change the Contract by Parol — Case at Bar. — An executory contract for the sale of land may be amended and modified before it becomes executed, by parol, by vendor and purchaser so as to substitute ownership in severalty by each for joint ownership by both.

14. SPECIFIC PERFORMANCE — Title Free from Valid Objections — Alleged Judgment Liens on One-Half of the Property — Title Held in Trust for Beneficial Owner of Land — Case at Bar. — The instant case was a suit for specific performance. Appellee had agreed to buy the property from appellant, provided the title should be free from valid objections. Appellee asserted that certain judgments against one Paschall were liens on an undivided one-half of the land. The former owner of the property had entered into a contract to sell Paschall and one Gresham, who afterwards conveyed the property to appellant, six lots, which included the property in question. Paschall and Gresham had been and in the instant case where estate together, but had no written partnership agreement. Before the contract between Paschall and Gresham, on the one hand, and the former owner, on the other, was executed, its provisions were waived, changed or rescinded by the parties, and the transfer of title from the former owner, instead of being made to Gresham and Paschall jointly, was made separately to Gresham, Paschall and another, and these conveyances were accepted by the parties in discharge of the original executory contract of sale between the former owner and Paschall and Gresham. If paschall ever had any title to the Gresham land, clearly he should be held in equity to hold it as trustee for the beneficial owner — now the complainant.

Held: That such a title could not be subject to judgment liens against the trustee, Paschall.

15. JUDGMENT LIENS — Judgments against Trustee Unenforceable against Trust Estate. — Judgments against the holder of the bare legal title to land are unenforceable where the land is charged with a paramount trust.

16. JUDGMENT LIENS — What Right Judgment Creditor...