Shenandoah Val. R. Co v. Dunlop Et Ux

• Decision Date: 07 November 1889
• Citation: 10 S.E. 239,86 Va. 346
• Court: Virginia Supreme Court
• Parties: Shenandoah Val. R. Co. v. Dunlop et ux.

10 S.E. 239

(86 Va. 346)

Shenandoah Val. R. Co.

v.Dunlop et ux.

Supreme Court of Appeals of Virginia.

Nov. 7, 1889.

Deeds—Reformation—Cancellation—Specific Performance—Equity Pleading.

1. The reformation of a deed to conform to a written contract entered into before the execution of the deed will be denied where the proofs show, not only that nothing was omitted from the deed by accident or mistake, but that the departure from the terms of the contract was deliberately made, and that it was the subject of discussion between the parties when the deed was executed, which was done with a full and clear understanding of its contents, and with no other outside influence or assurance than that of the agent of the grantee, a railroad company, that it would comply with the essential requirements of the contract, but not professing to be authorized to bind the company beyond the stipulations in the deed.

2. No ground for the cancellation of a deed exists where it is alleged that a verbal agreement contemporaneous with the execution thereof was entered into, by which the terms of a preliminary written contract were to remain in full force; the evidence not supporting a charge of fraud.

8. Where, after the execution of a contract to grant to a railroad company a right of way across land, in consideration of which the company stipulated to perform certain acts, a deed of the right of way was executed, containing different stipulations, the contract is merged in the deed, and cannot be specifically enforced.

4. Since a contract to convey a right of way across contiguous tracts of land owned by a husband and wife, respectively, cannot be enforced as against the wife, it lacks mutuality, and cannot be enforced at the suit of the husband and wife.

5. Under a prayer for general relief, plaintiffs are entitled to a decree for a specific performance of the stipulations in the deed, although not prayed for specifically.

Edmund Pendleton, for appellant. Glasgow & Glasgow, for appellees.

Lewis, P. This is an appeal from two decrees, —one rendered on the 18th of July, 1884, by the circuit court of Rockbridge county; the other on the 27th of April, 1887, by the circuit court of Roanoke city, in a suit in equity commenced in the first-mentioned court, and afterwards removed to the latter. It appears from the record that on the 25th of May, 1881, the male appellee, John T. Dunlop, entered into a written con-tract with the Shenandoah Valley Railroad Company, whereby he agreed, in consideration of $1,500 and two lines of seven-strand barbed-wire fence between certain mentioned stations on the line of the railroad, and four crossings between certain mentioned stations on the same road, "said crossings not to exceed a rise of one in twenty, " to grant to the railroad company a right of way through two contiguous tracts of land lying in Rockbridge county, one owned by himself, and the other by his wife, which she had acquired by inheritance from her deceased father. The contract was signed by John T. Dunlop alone, although at the bottom of it is the following: " The foregoing grant is subject to the acceptance of the Shenandoah Valley Railroad Company, to be evidenced by its execution of this deed." It appears, however, from indorsements on the contract, that its acceptance was recommended by W. T. Shields, who was the agent of the railroad company in procuring rights of way, and that on the 26th of May, 1881, it was " accepted for U. L. Boyce, vice-president, " by W. W. Coe, chief engineer of the company. By deed dated the 9th of June, 1881, Dunlop and wife conveyed, with general warranty of title, to the railroad company, the strip or parcel of land mentioned in the contract, and thereupon the company took, and has since held, possession of the land. But the stipulation in the deed with respect to fencing and crossings differs materially from that contained in the contract, the provision in the former being as follows: "The said Shenandoah Valley Railroad Company to provide all proper wagon-ways across the track on said grantor's lands, not to exceed a rise of one in twenty; to keep the same in good repair, and to build a seven-strand barbed-wire fence on each side of the track as it runs through the lands of said grantors." And it is this that gives rise to the present controversy. The bill sets forth, substantially, the foregoing facts, and prays for the specific performance of the contract of the 25th of May, 1881. It also sets forth what it is alleged was the understanding between the parties as to the nature of the crossings to be constructed at the time the contract was entered into. The bill was filed by Dunlop and wife jointly, and copies of the contract and deed are exhibited therewith. It is not alleged, however, that possession was taken by the defendant corporation under the contract, but the allegation, in substance, is that possession was taken, and that the railroad was constructed through the complainants' lands, under the deed. The company demurred to the bill, and also answered, but the demurrer was overruled by the decree first above mentioned. By that decree it was also adjudged, in the language of the deed above quoted, that the defendant corporation is bound to provide all proper wagon-ways across the track on the plaintiffs' lands, not to exceed a rise of 1 in 20, and to keep the same in good repair, etc. It will thus be seen that the decree not only overruled the demurrer to the bill, but went on to adjudicate the principles of the cause by holding, in effect, that the complainants were entitled to no other rights in respect to the crossings than such as were stipulated for in the deed, which, in effect, was also a decision that the complainants, the appellees here, are not entitled to a specific performance of the contract of the 25th of May, 1881.

In the latter view we concur, and, so thinking, we are of opinion that the demurrer to the bill ought to have been sustained, since the sole object of the bill was the enforcement of that contract. The bill is demurrable for several reasons. In the first place, the contract, if it bound the company at all, is functus officio, it having been merged in the deed; nor was it ever capable of being enforced in its entirety, because, so far as it related to the sale of Mrs. Dunlop's land, it was not mutual. It was not signed by her, and, even...