Wendlinger v. Smith

• Decision Date: 17 February 1881
• Citation: 75 Va. 309
• Parties: WENDLINGER v. SMITH AND ALS.
• Court: Virginia Supreme Court

75 Va. 309

WENDLINGER v. SMITH AND ALS.

Supreme Court of Appeals of Virginia.

February 17, 1881

1. G executor of V, makes a contract with W, to sell to W a lot of ground. The contract is perfect on its face and absolute; but at the foot of it is a paper referring to it, and indicating that the devisees of V expressed their approval of the sale. This paper has to it nine seals, only four of which have names attached to them. This writing is presumably a part of the instrument, and indicates that all the devisees of V were to approve it. Whether their approval was to be a condition upon which the contract was to take effect, is uncertain upon the face of the papers; and therefore parol evidence to prove the condition is competent.

2. The rule of law that a deed cannot be delivered to a party to whom it is made, as an escrow, to be the deed of the obligor only on condition, and that in such case the delivery is absolute and the condition nugatory, is applicable only to the case of deeds which are upon their face complete contracts, requiring nothing but delivery to make them perfect according to the intention of the parties; not to deeds which upon their face import that something more is to be done besides delivery, to make them competent and perfect contracts according to the intention of the parties.

The questions in this case arose in a suit in equity in the chancery court of the city of Richmond, brought by C. R. and P. H. Smith, to enforce a deed of trust which had been executed by C. Wendlinger, conveying a lot with the buildings thereon to a trustee to secure certain notes which said Wendlinger had made to the plaintiffs. It appears that in May, 1865, Wellington Goddin, as executor of Seymour P. Vial leased to Charles J. Meyers, for ten years, the lot on Bank street, and also a lot adjoining it on Main street, both of which was then without improvements, and it was one of the terms of the lease that Myers should build upon the property and at the termination of the lease the buildings should be valued by arbitrators, to be selected by the parties, and that Myers should receive the value of the buildings so ascertained. In August, 1865, Myers assigned his lease to Wendlinger, and both lots were improved by buildings put upon them; and subsequently Goddin, as executor of Vial, sold and conveyed to Wendlinger the lot on Bank street. The questions in this case are connected with the other lot on Main street. In June, 1873, Goddin and Wendlinger executed the following agreement:

This agreement, made this 26th June, 1873, between Wellington Goddin, executor of the last will and testament of Seymour P Vial, deceased, party of the one part, C. Wendlinger, party of the second part, witnesseth:

Whereas by the said last will and testament of said Seymour P. Vial, the said Goddin, the executor thereof, is authorized to sell the whole or any part of the unimproved real estate of the said testator, and is also authorized, on the death of the survivor of Peter Vial, Rosa L. P. Wilkins and Desiree or Keziah Boobee, to sell all the testator's estate then remaining unsold; and whereas by the fire of the 3d April, 1865, the houses which stood on the land hereinafter mentioned were burned down and the same was unimproved, and the said C. Wendlinger is the assignee of Charles J. Myers, with whom said Goddin, as executor aforesaid, made a building lease on said land, one of the provisions of which lease was that on the expiration of the said lease the houses erected thereon by the tenant were to be paid for by the estate of the said Seymour P. Vial, and by reason of certain embarrassments of said real estate, the compliance with this covenant will be extremely difficult, if not impossible, and in the view of the said executor it becoming highly judicious and proper to enter into a contract of sale of the said land with the said Wendlinger; and the said Peter Vial and Desiree Boubee having departed this life, the said Rosa L. P. Wilkins is the sole survivor, and she has already attained extreme old age; and the said party of the second party desiring to purchase the land hereinafter mentioned, offers to pay for the same as hereinafter mentioned, the said executor covenanting to sell the same to him at the price hereinafter mentioned; and when and as soon as the purchase money is paid, and the said Rosa L. P. Wilkins shall depart this life, to execute a good and sufficient conveyance to the said C. Wendlinger, with special warranty.

Now, therefore, this agreement witnesseth, that the said W. Goddin, executor as aforesaid, agreed to sell, and hereby sells, to the said C. Wendlinger, all that lot of land lying and being in the city of Richmond on the north side of Main street, between 9th and 10th streets, fronting on said Main street twenty-two feet, running back seventy-five feet, at the price of seven thousand seven hundred dollars, payable on the 1st July, 1875, with interest thereon at the rate of six per centum per annum from the 1st day of July, 1873, the said interest to be paid quarterly on the 1st days of October, January, April, and July, in each year. And the said C. Wendlinger hereby covenants and agrees to purchase, and does hereby purchase, the said land from the said executor at the said price, and binds himself, his heirs, executors, and administrators to pay to the said W. Goddin, executor of Seymour P. Vial, deceased, the said sum of seven thousand seven hundred dollars on the 1st July, 1875, and to pay interest thereon from the 1st July, 1873, at the rate of six per centum per annum, and to pay the said interest in quarterly payments of one hundred and fifteen dollars and fifty cents each, on the 1st days of October, January, April, and July in each year, until the principal sum is paid.

Witness the following signatures and seal.

W. GODDIN, [Seal.]

Ex'r of S. P. Vial, dec'd.

C. WENDLINGER. [Seal.]

To this agreement the following paper was attached:

We, the undersigned devisees under the will of the late Seymour P. Vial, deceased, do hereby ratify, approve and confirm the foregoing contract.

Witness the following signatures and seals.

WM. S. BAILEY. [Seal.]

VIRGINIA M. BAILEY. [Seal.]

J. B. EZELL. [Seal.]

MARY O. EZELL. [Seal.]

_____ _____. [Seal.]

_____ _____. [Seal.]

_____ _____. [Seal.]

_____ _____. [Seal.]

_____ _____. [Seal.]

Goddin, in his answer, insists that this was a valid and binding contract for the sale of the lot to Wendlinger; whilst Wendlinger insists that the contract depended upon Goddin's getting the assent of the devisees of Vial to the sale; and that he had not been able to get their assent, and so informed Wendlinger, and that he then considered the contract at an end.

It is unnecessary to go into further detail. The deposition of Robert G. Scott, who was the counsel of Wendlinger, pending the negotiations, and a statement of Wellington Goddin, were filed in the cause, and were excepted to as competent evidence by Goddin. If this evidence was competent, there was no doubt that the contract was dependent on the consent of the devisees of Vial.

The cause came on to be heard on the 12th of May, 1877, when the court held the contract of the 26th of June, 1873, between Goddin, as executor of Vial, and Wendlinger, was absolute on its face, and was not dependent upon the assent of the devisees of Vial; and that it was incompetent to admit parol testimony for the purpose of altering said contract; and therefore sustained the exceptions to the deposition of Scott and the statement of Goddin, and decreed that Wendlinger must comply with the said contract. And thereupon Wendlinger applied to a judge of this court for an appeal and supersedeas; which was awarded.

Guy & Gilliam, Keiley, and T. N. Page, for the appellant.

Sands, Leake & Carter, Johnson, Williams & Boulware, and E. Y. Cannon, for the appellees.

OPINION

BURKS, J.

The contract of June 26, 1873, between Goddin, as executor...