Sale v. Swann

• Decision Date: 17 January 1924
• Citation: 120 S.E. 870
• Parties: SALE et al. v. SWANN.
• Court: Virginia Supreme Court

120 S.E. 870

SALE et al.

v.SWANN.

Supreme Court of Appeals of Virginia.

Jan. 17, 1924.

Appeal from Circuit Court, Goochland County.

Bill by Moses F. Swann against W. W. Sale and others. Decree for complainant, and defendants appeal. Amended, affirmed, and remanded.

A. Hardin Harris and Scott & Buchanan, all of Richmond, for appellants.

D. H. Leake, D. M. White, and Wm. M. Justis, Jr., all of Richmond, for appellee.

PRENTIS, J. Upon a bill filed by the appellee, Swann, for the purpose of enforcingspecific performance of the contract of appellants to purchase from him a farm in Goochland county, the court decreed in favor of the vendor, and that decree is here under review. The vendees in their answer conceded the right of the vendor to have specific enforcement of the contract in this language:

"Tour respondents admit that the complainant has a right to have the said contract and agreement specifically enforced in accordance with its terms, that is to say, that the said Sale, Walton and Nash be required to accept from the complainant a deed conveying to them the said property, and they to execute and deliver to the complainant the notes and deed of trust provided for in the said agreement."

This admission, however, is qualified by a denial of the construction which the vendor put upon the contract. The vendor claims that under the contract he is entitled to interest on the deferred installments from December 16, 1919, the date fixed by the contract, while the vendees claim that possession of the property was never delivered to them, and that, therefore, they should not be required to pay interest upon the purchase money until the date of delivery of the deed and possession of the property.

On April 27, 1920. when this controversy arose, only the interest between December 16, 1919, and April 27. 1920, was involved; but now the claim of the vendees is that interest has not yet begun to accrue. The issue presented then is whether or not the vendees are liable for interest from the 16th day of December, 1919.

This leads us first to the contract. This is dated December 5, 1919: the price of the property is thereby fixed at $16,500 net to Swann, and then follows this language therein:

"Five hundred dollars is to be paid on the 10th day of December, 1919, on which day the party of the first part is to execute to the parties of the second part a general warranty deed for the said property, and the parties of the second part are to execute and deliver to the party of the first part a deed of trust to secure notes amounting to sixteen thousand dollars, which said notes shall be payable at three years after date, together with interest notes semiannually on the whole of said amount, and with a proviso in deed of trust that if default is made in the payment of any interest note the whole sum shall become due and property may be sold to satisfy same."

It also provides that the vendees may associate an additional purchaser with them, if they so desire; that the notes for the deferred payments shall be made for half thereof, if there are two purchasers, or for one-third thereof, if there are three; that the vendees, if they desire to do so, may have the land conveyed to a corporation; and that—

"If parties of second part desire to have said land conveyed to a corporation they may require same to be done, provided that in that event the corporation shall execute its notes as hereinbefore provided, in which event the corporation shall execute its deed of trust securing the purchase money as aforesaid, and the parties of the second part and their associate, if one, shall indorse their respective proportion of said notes, that is, if parties of second part have no associate, each shall indorse one-half of said notes, if an associate, each shall indorse one-third of said notes."

The argument for appellants is rested chiefly upon the claim that the vendor refused to comply with his contract to convey and retained possession of the land. The evidence fails to sustain the claim that the vendor refused to convey. It shows that after the contract of December 5th he invariably recognized his obligation to do so. The date fixed by the contract for compliance was December 16th following, and on that date compliance was by mutual consent postponed until January 2, 1920. The obligations of the contract were not, however, changed in any respect; the delay was by mutual consent of the parties, which was so expressed in the written receipt given by the vendor to the vendees for $500 of the purchase money paid on that date. The reason the vendor desired postponement was because of the absence of his attorney, whom he desired to inspect and advise him as to the form of the deeds. The reason the vendees desired a postponement was because they proposed to exercise their option to have the land conveyed to a corporation and they desired to delay the organization of such a corporation until after January 1, 1920, so as to escape the payment of certain corporate taxes for 1919.

On January 2, 1920, Swann failed to meet his engagement, though the vendees were ready to complete the transaction on that date. His absence and failure were shortly thereafter explained,.if not justified, by his confinement to his home in the country by a sudden attack of sickness. He thus testified as to this:

"I thought for some time I would soon be out and would come back to Richmond, but I didn't get better, and about the 20th of January I wrote Gen. Sale telling him that [apparently quoting] if for any reason you gentlemen want this deed before I come, I will send Mr. Bonifant [his counsel] in and get the papers and he would bring them in and close the transaction." (Words in brackets supplied.)

The letter referred to was thus replied to by one of the vendees:

"Richmond, Va., January 30, 1920. "Mr. Moses F. Swann, Clayville, Virginia-Dear Mr. Swann: As I have been staying in town, your letter of January 20th addressed to me at Vinita has only just reached me here. I regret very much to hear that you have continued ill, and I sincerely hope by the time you receive this that you will have greatly improved. However, in these days of influenza, Ithink it is important to take no chances, so do not come out too soon.

"We have been ready for some time to settle up the Goat Hill matter, but would prefer waiting until you are able to come to Richmond, as it would be more satisfactory to discuss all details with you in reference to notes, indorsements, etc., before the papers are signed. I will be glad if you will notify me a day or two in advance, as soon as you are able to come down, so we can arrange to be here to close the matter.

"I am very sorry to hear Mr. Justis is unable to be at his office. I called there several times before receiving your letter and was told he was out of the city.

"Hoping you are getting better fast, and assuring you of my best wishes, I remain

"Yours sincerely, W. W. Sale."

This correspondence needs neither elaboration nor explanation, for it plainly shows that the time fixed for the conveyance was not considered by either of the parties as of the essence of this contract; that the vendor then acknowledged his obligation, and offered to sign the deed; and that the vendees not only waived an immediate compliance with the contract as of January 2, 1920, or on January 20, 1920, as offered, but preferred to wait until the vendor should recover and be able to come to Richmond, as it would be more satisfactory to them to discuss details with him. This waiver by the vendees was never thereafter withdrawn or modified, though several letters were written by the agent who negotiated the sale, complaining to the vendor of his delay. Probably in response to this insistence on the part of the agent, Swann in February again recognized his contract obligation by sending his attorney to Lancaster, the agent, who was in touch with the vendees, to inform them that he was willing to execute the deed, if they would send it to him, but that he wished the notes for the deferred payments made payable to the vendee corporation and indorsed to him, instead of being made directly to him as payee. The result of that discussion was, as Lancaster testified, that they thought it best not to send the papers to him with the desired change. They were willing, he testifies, to send the papers up in accordance with the contract, but not with that change. Here again is another recognition of his obligation, and of the vendees' immediate right to a conveyance; and it is observed that the change which Swann suggested would neither have changed nor increased the contract obligations of either party.

Then again he recognized the vendees as the true owners of the property and his obligation to convey it to them by writing this letter:

"Michaux, Va., March 13, 1920.

"Genl. W. W. Sale—Dear Sir: I imagine that you are not in the city this week and perhaps did not get my letter. ...