Preston v. Preston

• Decision Date: 01 October 1877
• Citation: 24 L.Ed. 494,95 U.S. 200
• Parties: PRESTON v. PRESTON
• Court: U.S. Supreme Court

95 U.S. 200

24 L.Ed. 494

PRESTON v. PRESTON.

October Term, 1877

APPEAL from the Circuit Court of the United States for the Western District of Virginia.

This is a suit brought in the court below, Jan. 8, 1873, by John Preston, Jr., against Thomas L. Preston, James C. Campbell, Arthur C. Cummings, William Alex. Stuart, and George W. Palmer, for the specific performance of an agreement made Aug. 30, 1847, for the conveyance of certain lands.

The court below dismissed the bill, whereupon the complain ant appealed here.

The facts in the case are fully stated in the opinion of the court.

Mr. William L. Royall for the appellant.

Mr. Thomas J. Kirkpatrick, contra.

Mr. JUSTICE FIELD delivered the opinion of the court.

This is a suit to enforce the specific performance of an agreement for the conveyance of certain lands in Virginia. It appears from the record that in 1846 one Sarah B. Preston, of Abingdon, in that State, died possessed of a large amount of real property, embracing the premises in controversy. By her last will and testament, which was duly probated, she made the following devise:——

'I give and devise to my three sons, William C. Preston, John S. Preston, and Thomas L. Preston, and to their several heirs for ever, my salt-works estate, embracing and including therein as well the original and principal tract containing the wells, as all the additions subsequently acquired, and all my lands of every description, whether cleared or woodland, either adjacent to or in the vicinity of the salt-works estate, in the counties of Smyth and Washington.'

Upon the property thus devised the testator charged the payment of certain legacies to the amount of $80,000. She also made her three sons her residuary devisees. In August of the following year, John S. Preston, one of the devisees, by an agreement in writing sold to his brother, Thomas L. Preston, all the interest which he had acquired under the will in the salt-works estate and adjoining lands and as residuary devisee.

It would appear from the recitals in the deed of trust made to secure the purchase-money, as hereafter mentioned, that a conveyance of the property was on the same day executed and delivered to Thomas L. Preston on conformity with this agreement, though it was never placed on record. In consideration of this sale, and of the transfer of certain partnership claims and other personal property, Thomas L. Preston agreed to pay John S. Preston $50,000 on or before the first day of January, 1860, with interest, and to secure the same by a mortgage or deed of trust of the property; to assume the payment of the legacies charged upon the salt-works estate; to indemnify his brother against liability for the debts of sundry partnerships of which he was a mem er, and to convey to him a tract of land described as 'adjoining the salt-works estate, containing about three hundred and fifty acres, and known as the Campbellsville tract, and also a sufficient quantity of other lands adjoining the said tract, to make up the quantity of five hundred acres of land.' In compliance with this agreement, and on the same day, Thomas L. Preston executed a deed of trust of the real property to a trustee to secure the payment of the $50,000 and interest. But no conveyance of the Campbellsville tract and adjoining lands was ever made by him to his brother; and it is to compel such conveyance that the present suit is brought. The complainant acquired whatever interest he possesses in the land by purchase from John S. Preston in 1870.

To the maintenance of this suit there are insuperable objections. In the first place, the property of which a conveyance is sought has not been identified; and it would seem that at this...