Winston v. Winston

• Decision Date: 17 December 1925
• Citation: 144 Va. 848
• Court: Virginia Supreme Court
• Parties: CHARLES M. WINSTON v. N. W. WINSTON, SR., ET ALS.

Page 848

144 Va. 848

CHARLES M. WINSTON v. N. W. WINSTON, SR., ET ALS.

Supreme Court of Virginia, Richmond.

December 17, 1925.

1. ABATEMENT, REVIVAL AND SURVIVAL — Actions — Commencement of Actions — Specific Performance of a Contract to Convey Realty in Return for Services — Death of one Defendant. — A suit by a son against his father and another child of the father, for the specific performance of a contract by the father to convey realty to the son for services to be rendered by the son, was not brought prematurely, after the son had rendered the services and the father had broken with the son and driven him from his home and conveyed the property in question to another one of his children. If complainant was entitled to relief at all, he was entitled to it before the death of the father, and therefore, the father's death did not necessitate the filing of a new bill.

2. AMENDMENTS — Limitation of Amendment — Case at Bar. — In the instant case the original bill was dismissed with leave to amend. An amended bill was filed which was also dismissed with leave to file an amended bill to the amended bill. A second amended bill was filed which was practically identical with the former, which was also dismissed for lack of equity. A third "amended and supplemental bill" was tendered and on motion was rejected by the court.

Held: That there was no error in the rejection of this third amended bill, as there is some limit to amendments and that limit had been reached in the instant case.

3. AMENDMENTS — Specific Performance — Dismissal of Bill with Leave to Amend — Case at Bar. — In the instant case, a bill for specific performance was dismissed with leave to amend. An amended bill was filed which was identical with the original bill until the prayer for relief was reached. In the original bill the prayer for relief was for specific performance and for general relief. This also was in the prayer of the second bill, but by way of amendment there was added an alternate prayer for damages to be granted in the event the court should be of opinion that specific performance could not be ordered.

Held: That the so called amended bill was not an amended bill at all and had no more effect than had the bill which it purported to amend been copied and refiled.

4. BILL IN EQUITY — Prayer for Relief — General and Specific Relief. — A bill in equity should contain a prayer for both specific and general relief, but under a prayer for general relief only, there may be granted any relief warranted by the facts alleged; and, under a prayer for specific and general relief, may be given the relief asked specifically, and any further relief warranted by the allegations, so it be not inconsistent with the specific relief asked.

5. SPECIFIC PERFORMANCE — Specific Performance Denied — Compensation to Injured Party. — The power of a court of equity to give compensation merely to an injured party where specific performance is denied was long an open question in Virginia, but whatever might have been the rule heretofore, there is no doubt that a court of equity, even where specific performance is refused, will now decree compensation to the purchaser in many cases.

6. SPECIFIC PERFORMANCE — Specific Performance Denied — Payment for Services Rendered. — While in a suit for specific performance, by a son against his father, of a contract to devise or convey realty in consideration of services to be rendered by the son, damages pure and simple could not be allowed the son where specific performance was denied by the court, yet payment for the son's services by the way of compensation might be decreed.

7. SPECIFIC PERFORMANCE — Prayer for Relief — Alternate Prayer for Pecuniary Compensation. — In a suit by a son against his father for specific performance of a contract to convey or devise realty to the son in consideration of service performed by him, it was not necessary that an alternate prayer for pecuniary compensation be tendered, as that could be given under the prayer for general relief.

8. BILL IN EQUITY — Prayer for Relief — Inconsistent Positions — Relief Inconsistent with Special Prayer. — Of course a litigant cannot take inconsistent positions, and for the same reasons, when there is a special prayer, the court cannot, under a general prayer, grant relief inconsistent therewith.

9. SPECIFIC PERFORMANCE — Alternate Relief — Case at Bar. — In the instant case, a suit for specific performance of a contract between the father and son, under which the father was to devise or convey certain real property to the son in return for services rendered by the son, the father had put it out of his power to deed or will the realty by conveying it to another. So from him compensation in money or payment for services rendered was the only compensation which was possible for the son to receive. The special prayer was that the contract be specifically enforced against the father and that, if necessary, the realty be held in trust by the grantee of the father to that end. If this could not be done, there was nothing, even by strict construction, inconsistent in ordering a return of the consideration paid or payment for services rendered. Equity could not do less and it would have been idle circumlocution to remand these parties to a court of law when, if needed, an issue out of chancery was available.

10. FINAL JUDGMENTS AND DECREES — Court Called upon Afterwards to Determine if its Conditions had been Complied with — Case at Bar. — A decree at the end of thirty days from its date became final. Within that time an amended bill might have been filed, but not afterwards; and the finality of the decree was not affected by the fact that the court was called upon afterwards to determine if its conditions had been complied with. No amended bill was filed. From this decree no appeal was taken and its correctness was not questioned in the record.

Held: That no only did the appeal in the instant case come too late but in fact there was no appeal.

11. APPEAL AND ERROR — Leave to Amend — Demurrer Sustained without Objection — Case at Bar. — The rule is well settled that when a demurrer to a bill is sustained, with leave to the plaintiff to amend, if the plaintiff exercises that privilege, he cannot afterwards be heard to object to the decree on the original bill, and in the instant case this rule is not affected by the provisions of section 6116 of the Code of 1919, which provides that where a demuree amends his pleading he shall not be deemed to have waived his right to stand upon his pleading before the amendment, provided the order of the court shows that he objected to the ruling of the court sustaining the demurrer. No such objection or reservation is embodied in any decree in this suit.

12. STARE DECISIS — Sustaining Demurrer with Leave to Amend — Identical Facts Set up in Amended Bill. — In the instant case the court, having decided upon the facts as set out in the original bill, and sustained the demurrer to that bill, was not called upon to again decide upon these identical facts because they were set out in another and subsequent bill. It would greatly increase the labor of appellate courts and costs to litigants if questions once considered and determined coudl be reopened on any subsequent appeal.

Appeal from a decree of the Circuit Court of Louisa county. Decree for defendants. Complainant appeals.

The opinion states the case.

W. W. Smith, Jr., and Fulton & Wicker, for the appellant.

W. C. Bibb and Gordon & Gordon, for the appellees.

HOLT, J., delivered the opinion of the court.

The original bill was filed in this suit on August 2, 1920. To it demurrers were interposed and on November the 21st, 1921, a decree was entered which was in part as follows: "On consideration whereof the court, being of the opinion that the bill of the complainant is without equity and insufficient in law and that the demurrers thereto should be sustained, doth hereby order and decree that the said demurrers to said bill be and they are hereby sustained, and on motion of the complainant leave is hereby given him to amend said bill and file same within thirty days from the date hereof."

To this decree no objection has been ever made. On December 2, 1921, in accordance with leave given, an amended bill was filed which, with considerable elaboration of detail, contained substantially the allegations set out in the petition for appeal. These allegations are: "The bill alleges a parol contract between the petitioner and his father, the defendant, whereby the father offered, agreed and contracted in the year 1905 that if the petitioner would continue to live with and in the home of the said defendant and give and render to him his services, society, care and attention and work for him and help take care of, cultivate and operate the home farm of the said defendant so long as he might desire your petitioner to do so, that the defendant would pay the petitioner $150.00 per year and give him his board and lodging and give him the right, privilege and option to purchase the Mt. Airy farm, together with the buildings and improvements thereon, for petitioner's services and for $2,500.00 to be paid to the executors of the defendant and to be charged against his share in his father's estate.

That the said contract and agreement was made both orally and in writing; that your petitioner, the complainant, had accepted the said contract and agreement and had taken joint possession of said farm and had fully performed his part of said contract in so far as the defendant allowed him to do so, and that the complainant and defendant had, in 1911, modified said contract to the extent of increasing the amount to be paid the executors of the father, the defendant, from $2,500.00 to $3,500.00; and that the defendant on May 18, 1911, had rewritten his will, in which he had set out in part said agreement made in 1905. For the allegations as to the contract, see clauses 2, 3,...