Sachs v. Owings

• Citation: 92 S.E. 997
• Parties: SACHS et al. v. OWINGS.
• Decision Date: 14 June 1917
• Court: Supreme Court of Virginia

(121 Va. 162)

92 S.E. 997

SACHS et al.

v.OWINGS.

Supreme Court of Appeals of Virginia.

June 14, 1917.

Rehearing Denied June 26, 1917.

Error to Hustings Court of Petersburg.

Action by Irvin Owings against Walter Sachs and another. Judgment for plaintiff, and defendants bring error. Reversed.

This is an action at law by motion, in the nature of an action of assumpsit, by the defendant in error, plaintiff in the court below (hereinafter designated "plaintiff"), against the plaintiffs in error (hereinafter designated "defendants"), to recover back the $500 cash payment made by the former to the latter upon a contract of purchase of real estate, on two grounds:

(1) Because at the time fixed for completing the contract the defendants (the vendors) could not convey a marketable title; and

(2) Because on the day before the time fixed for completing the contract the defendants (the vendors) released the plaintiff (the vendee) from the obligation of the contract in consideration of the mutual agreement of plaintiff and defendants to cancel the contract, and that for the same consideration the defendants promised and agreed to refund the said $500 to the plaintiff.-

The said contract was in writing and under seal.

The material portions of the contract are as follows:

"This agreement of sale, made and entered into, in duplicate, this 14th day of August, 1915, by and between Walter Sachs and Fannie Sachs, his wife, parties of the first part, and Irvin Owings, of Washington, D. C, * * * party of the second part,

"Witnesseth that for and in consideration of the mutual promises and agreements hereinafter set forth, and especially in consideration of the sum of five hundred dollars ($500) cash in hand paid by the party of the second part to the parties of the first part, receipt whereof is hereby acknowledged, the said parties of the first part do hereby agree to sell to the said Irvin Owings, and the said Irvin Owings doth hereby agree to buy of the said Sachs all that certain tract of land [here follows description of the land], and the said terms and conditions of purchase of the said tract of land herein agreed to be sold by the said Sachs and bought by the said Owings are as follows, to wit:

"(1) Sixteen thousand dollars ($16,000) is to be the amount paid by the said party of the second part to the parties of the first part, and of this sum five hundred dollars ($500) has al ready been paid by the party of the second part to the parties of the first part to bind this bargain, and the remainder of the purchase price, or fifteen thousand five hundred dollars ($15,500) is to be paid on August 19, 1915, and upon the payment of the balance of the purchase price, the said parties of the first part agree to deliver to the said party of the second part a good and sufficient deed for the property hereinabove mentioned, with general warranty and covenants of title; but, in the event the payment of the remaining $15,500 is not made on or before August 19, 1915, then the $500 already paid on account of this transaction shall become forfeited by the party of the second part to the parties of the first part, and this agreement in all other respects shall be null and void. "Witness the following signatures and seals: "[Signed] Walter Sachs. [Seal.]

"Fannie Sachs. [Seal.]

"Irvin Owings. [Seal.]"

There was a trial by jury in the court below. Both the plaintiff and defendants introduced testimony. There was a demurrer to the evidence of the defendants by the plaintiff, and a verdict of the jury in favor of the plaintiff, subject to such demurrer.

The demurrer to evidence was sustained by the trial court and judgment was entered by it in favor of the plaintiff against the defendants for said $500, together with interest and costs, in accordance with said verdict.

There were other proceedings in the case, which, however, are immaterial In the view we take of It on the merits, and hence no reference thereto need be made by us.

On the merits of the case the following were the further material facts before the jury:

At the time fixed for completing the contract, to wit, August 19, 1915, the defendants had a good and perfect title to said land, subject, however, to the following subsisting incumbrance and lien thereon:

1. An easement of the Petersburg Telephone Company to maintain its telephone line erected along the margin of said land next to and alongside of the Western Union Telegraph "Company's telegraph line, which is located next to and along one side of such land.

2. Unpaid taxes for the year 1912, amounting to $4.84, which amount was presently payable.

There were also three alleged judgments, but they appeared of record as barred by the statute of limitations, and (if not barred by the statute of limitations) were for definite amounts, the aggregate of which, together with said delinquent taxes, were less in amount than the balance of unpaid purchase money due and payable on the day fixed for completing the contract, and they were all presently payable.

There was also a coupon judgment for taxes, but the effect of an agreement of counsel is to eliminate this from the case. If there had been no such agreement, however, this judgment would have fallen within the description of the three judgments above refer-red to, except that it was not barred by the statute of limitations.

With respect to the telephone line, the following should be noted:

1. The testimony for defendants tended to show that at least a portion of it, alongside the said land, had been erected and was obvious to the plaintiff, had he looked about him, when the latter was on the land prior to his purchase. There was sufficient evidence for the jury to have inferred that this easement was visible and notoriously affected the physical condition of the land at the time of the purchase.

2. The evidence, as it must be regarded by us, is to the effect that the telephone line was a benefit, rather than an injury, to the market value of the land.

3. The telephone line, if considered as marring the appearance or outlook from the land, was no more objectionable than the Western Union Telegraph line alongside of it.

With respect to the conveyance of said land, the facts were that a deed from defendants, in proper form, in strict accordance with the provisions of said contract, was duly executed by defendants and tendered to the plaintiff on said date fixed for completing the contract, to wit, August 19, 1915; that he declined to accept the deed, or to comply with the terms of the contract on his part by paying the $15,500 balance of purchase money; and that plaintiff offered to cancel the contract if the $500 was paid back to him and "call the deal off."

The testimony was conflicting on the point as to whether defendants, or either of them, ever agreed to the latter proposition, the testimony for defendants positively denying any such agreement, and the testimony for plaintiff being to the effect that there was such an agreement, which, if it existed, however, was oral, not in writing and not under seal.

Lassiter & Drewry, of Petersburg, for plaintiffs in error.

Hamilton & Mann, of Petersburg, for defendant in error.

SIMS, J. (after stating the facts as above). The rules of law governing all the points arising in this case are well settled, so that a limited reference to the authorities, without discussion of them, will be deemed sufficient.

This is an action by a purchaser of land to recover back a payment on account of purchase money under an unexecuted contract on the grounds: (1) That the title of the vendor was not such as the purchaser was entitled under the contract to require; and (2) on the ground that the purchaser was released by the vendor from the contract of purchase under seal by the subsequent oral agreement above referred to.

We will pass upon these defenses in the order in which we have stated them, and incidentally upon the points of law arising therefrom urged upon us in argument by counsel on both sides of the case.

1. Concerning the title the plaintiff had the right to require:

The plaintiff had the right to require only such title as he contracted for. He did not contract for a record title (Mundy v. Garland, 116 Va. 937, 83 S. E. 491), nor for one which an abstract of title would show to be good, or free of liens or incumbrances; nor one in fact free of liens or incumbrances. What he contracted for, indeed, was, by the strict terms of his contract, only "a good and sufficient deed * * * with general warranty and covenants of title." It is well settled, however, that, even at law, a purchaser under such a contract is entitled to require a marketable title to be conveyed to him by his vendor. Maupin on Marketable Titles to Real Estate, §§ 238, 242; 36 Am. & Eng. Anno. Cas. p. 1022, note; Bank of Columbia v. Hagner, 1 Pet. (U. S.) 455, 7 L. Ed. 219; Seibel v. Purchase (N. J. C. C. of U. S.) 134 Fed. 484; Note 70 Am. Dec. 739; Little v. Paddleford, 13 N....