White v. Dobson

• Decision Date: 02 February 1867
• Parties: WHITE v. DOBSON & al.
• Court: Virginia Supreme Court

58 Va. 262

WHITE v. DOBSON & al.

Supreme Court of Appeals of Virginia.

February 2, 1867

1. When a vendor of land has notified the purchaser that he will not fulfill the contract, the purchaser may file a bill for a specific execution of it without making a tender to the vendor of the securities provided for therein.

2. There being two parcels of land embraced in the contract each at a specific price, if the vendor can make a good title to but one parcel the vendee is entitled to have a conveyance of that parcel, if he will pay the stipulated price of that parcel, and accept it in full satisfaction of the contract.

3. The vendee is entitled to have, if he elects it, an account of the rents, issues and profits of the land, and to have them set off against the purchase money; or if he elects to waive an account, he shall not pay interest on the purchase money.

This was a suit for the specific performance of a contract for the sale of two tracts of land in the county of Gloucester brought by Samuel C. White, of York county, against William Dobson and Joel Hayes. The subpoena was issued and served on the 4th of March, 1859. The plaintiff in his bill stated that on the 20th of January, 1859, he had entered into an agreement with Wm. Dobson, under the hands and seals of the parties, by which Dobson had sold to the plaintiff two tracts of land in the county of Gloucester, upon terms which he sets out. That the plaintiff had at all times been willing and ready to carry the agreement into execution, and had repeatedly applied to Dobson for that purpose; but that Dobson, without any sufficient reason therefor, refuses to comply with said agreement on his part, and declares that he will not execute the same. He makes Dobson and Joel Hayes who he understands has a lien on the land, parties defendants, and prays for a specific performance; and for general relief.

Dobson answered the bill. He says it is untrue as stated in the bill that he refused, at the time the process was issued in the cause, to carry out the contract. On the contrary, he says that before the process in the cause was issued he notified the plaintiff that he was ready to execute the contract as far as he could do so on his part; and the plaintiff was fully aware of the fact. That the plaintiff has wholly failed to do and perform his obligations under the said contract and having so failed, the defendant insisted that he was absolved from it.

The contract which was exhibited with the bill, states that Dobson had sold to White one undivided half of a tract of two hundred and five acres, describing the land, at $1,742.50, payable in one, two and three years, to be secured by mortgage on the land, with interest from the date of the contract, free from all lawful claims upon it; and also another tract of six acres, at the price of $550, payable on the 1st of January, 1860. And they bound themselves to each other in the sum of $500 for the faithful performance of the contract.

The plaintiff introduced evidence to prove that in February, the parties and John T. Dobson, the owner of the other half of the larger tract, with a surveyor, came to the house of the witness to divide the land, when Wm. Dobson said to White that he (Dobson) would pay the forfeit rather than White should have the land. He also introduced another witness who stated that at the request of White, the witness did, about the 8th of February, deliver to Dobson a letter from White, in which he stated that he wished to settle the contract amicably, and was ready on his part to comply with it; and informing Dobson if he did not comply, White would be under the disagreeable necessity of instituting a suit to enforce the contract. And that Dobson upon reading the notice declared to the witness, that he would not comply with the contract; and that White might bring a suit to enforce it as soon as he pleased.

The defendant introduced a witness, who stated that on the 28th of February Dobson informed him that, on...