Present: All the Justices 

G & M HOMES II, INC. 

v. Record No. 010423 

SHIRLEY V. PEARSON, ET AL. 

OPINION BY JUSTICE CYNTHIA D. KINSER 

 January 11, 2002 

G & M HOMES II, INC. 

v. Record No. 010605 

SHIRLEY V. PEARSON, ET AL. 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Joanne F. Alper, Judge Designate 

 In this appeal, the dispositive issue is whether a contract 

for sale of real property is valid and binding absent the 

signature of one of the parties identified therein as a seller. 

Because we conclude that the contract is incomplete and not 

enforceable, we will affirm the judgment of the circuit court in 

favor of the defendants-appellees. 

FACTS AND MATERIAL PROCEEDINGS 

 The real property at issue in this appeal consists of nine 

lots in the “Division of the Land of C. Herbert and Shirley V. 

Pearson” located in Loudoun County. The property had been owned 

by Shirley V. Pearson (Pearson), and her husband, C. Herbert 

Pearson, as tenants in common, until Mr. Pearson’s death on 
November 7, 1998.1 In the residuary clause of his last will and 

testament, Mr. Pearson devised his real estate to his wife. 

However, Pearson signed a disclaimer with respect to the nine 

lots.2 The effect of the disclaimer, if valid, would be to allow 

Mr. Pearson’s interest in that real estate to pass to the 

Pearsons’ daughter, Herta Ann Pearson Gould (Gould).3 Pearson 

executed the disclaimer on July 15, 1999, but did not record it 

in the land records of Loudoun County until August 6, 1999. 

On the same day that she executed the disclaimer, Pearson 

also entered into a contract to sell the nine lots at issue to 

G & M Homes II, Inc. (G & M Homes). Earlier, on June 9, 1999, 

 1

 The Pearsons initially held the property as tenants by the 

entirety with the right of survivorship, but they conveyed it to 

themselves as tenants in common by deed dated March 13, 1985. 

2

 In the disclaimer, Pearson stated that, pursuant to Code 

§ 64.1-191, she “decline[d] to accept any beneficial interest in 

or through [her] husband’s half of certain jointly owned real 

property in Loudoun County, Virginia, described on the 

attachment hereto [listing the nine lots at issue], with respect 

to which I am surviving joint tenant by the entirety.” She 

further stated that, pursuant to Code § 64.1-188, she disclaimed 

the property “[t]o the extent that, by operation of law, [she] 

might stand to inherit the aforesaid property pursuant to 

Article II(A) of the will of C. Herbert Pearson [the residuary 

clause].” Whether it was necessary for Pearson to disclaim 

under both of those statutory provisions is not an issue in this 

appeal. However, as already noted, the Pearsons owned the 

subject property as tenants in common at the time of Mr. 

Pearson’s death. 

3

 Mr. Pearson devised his real estate in Loudoun County to 

Gould in the event that Pearson did not survive him. Under Code 

§ 64.1-190(A), disclaimed property descends as if the 

2
Pearson had signed a letter of intent providing for G & M Homes’ 

purchase of ten lots, with the provision that Pearson could 

elect to remove one lot from the contract before July 15, 1999. 

 The pertinent provisions of the contract of sale deal with 

the identity of the seller and the statement that the identified 

seller owns the subject property: 

 THIS contract made and entered into this 15th day 

of July, 1999, by and between SHIRLEY V. PEARSON and 

HERTA ANN GOULD, herein referred to as “Seller,” and 

G & M HOMES II, INC., a Virginia corporation, herein 

referred to as “Purchaser,” provides that: 

 WHEREAS, the Seller is the owner of nine (9) 

certain parcels of real estate in Loudoun County, 

Virginia, more particularly described as Lots 1A, 1B, 

2, 3, 5, 7B, 8, 9, and 10, Division of the Land of C. 

Herbert and Shirley V. Pearson[.] 

The last page of the contract contains two signature lines 

for the “Seller” and one signature line for the 

“Purchaser.” However, only Pearson and G & M Homes 

executed the contract; Gould never signed it. 

 Between July 15 and September 2, 1999, additional 

negotiations took place between the parties, including the 

preparation of at least one addendum to the contract of sale. 

However, in a letter dated September 2, 1999, an attorney 

representing Pearson and Gould advised G & M Homes that “my 

clients are not going forward in this matter” and returned G & M 

___________________ 

disclaimant predeceased the decedent. A disclaimer relates back 

to the date of death of the decedent. Code § 64.1-190(B). 

3
Homes’ deposit check. Subsequent to September 2, G & M Homes 

made another offer to purchase the property, which included a 

$40,000 option deposit check payable to Pearson and Gould. 

Again, the attorney for Pearson and Gould advised G & M Homes 

that Gould had given explicit instructions to reject the most 

recent offer and to return the check. 

 Because the sale of the property to G & M Homes was never 

consummated, G & M Homes filed a bill of complaint against 

Pearson and Gould, seeking specific performance of the contract 

of sale, damages for breach of contract, and declaratory 

judgment that the contract is valid and binding “to the full 

extent of the interest in the property owned by” Pearson.4 

Cross-motions for summary judgment were filed by G & M Homes, as 

well as Pearson and Gould. G & M Homes claimed that it was 

entitled to specific performance of the contract of sale both as 

to Pearson’s one-half interest in the property and the one-half 

interest devised to her by Mr. Pearson. In contrast, Pearson 

and Gould asserted that the contract was incomplete and thus 

invalid. 

 The circuit court granted the defendants’ motion for 

summary judgment with respect to G & M Homes’ claim for specific 

performance. The court subsequently directed G & M Homes to 

4
elect to proceed on only one of its two remaining counts in the 

bill of complaint: breach of contract or declaratory relief. 

G & M Homes decided to proceed on its claim for declaratory 

relief. 

 After hearing testimony and reviewing relevant documents 

regarding that claim, the circuit court granted the defendants’ 

motion to strike the evidence and found, as a matter of law, 

that Pearson had sole record title to the subject property as of 

July 15, 1999, and that the contract of sale signed on that date 

was not valid and binding on Pearson and G & M Homes because of 

the absence of the signature of Gould, a party to the contract. 

The court subsequently entered a decree incorporating its 

reasons stated from the bench and memorializing its ruling. 

G & M Homes appeals from that decree. 

ANALYSIS 

 The dispositive issue in this appeal concerns the validity 

of the contract for sale. G & M Homes contends that the 

contract is complete and enforceable without Gould’s signature. 

Relying on Code § 64.1-194, G & M Homes asserts that Pearson’s 

right to disclaim succession to her husband’s one-half interest 

in the property was barred because she exercised control over 

that interest by executing the letter of intent and the contract 

___________________ 4

 G & M Homes also named the trustee under a credit line 

deed of trust as a party defendant. The trustee filed an answer 

5
of sale prior to filing the disclaimer.5 Thus, G & M Homes 

maintains that Pearson owned both of the two moieties of the 

property when she signed the contract of sale and that, 

therefore, Gould’s name on the contract of sale is mere 

surplusage. 

 In the alternative, G & M Homes argues that, if Pearson’s 

disclaimer is effective and Gould owns her father’s one-half 

interest, the contract is, nevertheless, valid and binding as to 

Pearson’s one-half interest in the property. Relying on this 

Court’s decision in Wright v. Bryan, 226 Va. 557, 311 S.E.2d 776 

(1984), G & M Homes contends that the absence of Gould’s 

signature does not affect the validity of the contract as 

between Pearson and G & M Homes. Thus, G & M Homes posits that 

it is at least entitled to specific performance of the contract 

as to Pearson’s one-half interest, or declaratory judgment that 

the contract is binding and enforceable as to Pearson. 

 In response, Pearson and Gould assert that the contract 

lacks the signature of a necessary party and, thus, is not 

___________________ 

but has not participated further in this suit. 

5

 Code § 64.1-194 places a restriction upon the right to 

disclaim by specifying, in pertinent part, that “[a]ny . . . 

assignment, conveyance, encumbrance, pledge or transfer of 

property or interest therein or contract therefor . . . made 

before the expiration of the period in which the disclaimant may 

disclaim . . . bars the right to disclaim as to the property or 

interest.” 

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complete or binding as to any of the parties. In support of 

their position, Pearson and Gould point out that the language 

and form of the contract of sale demonstrate that Pearson and 

Gould, as a single unit, were to be the seller. We agree with 

Pearson and Gould. 

 First, our decision in Wright is distinguishable. G & M 

Homes asserts on brief that the real estate purchase contract at 

issue in that case mirrored the one at issue in this appeal. 

G & M Homes is wrong. Contrary to its assertion, the contract 

in Wright did not list both the husband and wife as the 

“Seller.” Instead, only the husband, Ray L. Wright, was 

referred to as the “Seller.”6 His wife’s name did not appear 

anywhere in the contract, and only the husband executed it. 

Wright, 226 Va. at 558, 311 S.E.2d at 777. Thus, we concluded 

that the contract did not lack mutuality merely because the 

seller’s wife had not executed it, and that it remained valid 

between the executing parties and could be the foundation of an 

action at law for breach of contract. Id. at 561, 311 S.E.2d at 

778. However, the absence of the wife’s signature precluded 

specific performance of the contract because the property at 

 6

 This fact is not necessarily evident from our opinion in 

that case. However, an examination of the contract itself, 

included in the joint appendix, pp. 12-13, filed with the appeal 

in that case, does show that only the husband was named as the 

“Seller.” On brief, G & M Homes referenced that appendix but 

apparently looked at the wrong contract. 

7
issue was held by the husband and wife as tenants by the 

entireties. Id.

 In contrast to the contract in Wright, the contract of sale 

at issue here identifies Pearson and Gould, collectively, as the 

“Seller.” The singular term “Seller” is consistently used 

throughout the contract. Notably, paragraph 20(A) contains a 

warranty that the “Seller is the sole fee simple owner of the 

Property.” Finally, on the last page of the contract, two 

signature lines are located under the caption “SELLER.” This 

language and form of the contract of sale indicate that Gould’s 

signature was understood by the parties as necessary in order to 

have a complete and binding contract as to any party. Cf. Marks 

v. Williams, 222 Va. 40, 44, 278 S.E.2d 806, 808 (1981) (the 

absence of a signature line for the seller’s wife “indicates 

that the wife’s agreement was not a precondition of the 

contract”). 

 The use of the term “Seller” throughout the contract of 

sale to identify both Pearson and Gould is consistent with 

Pearson’s execution of the disclaimer on the same day that she 

entered into the contract of sale. However, a determination as 

to whether Gould acquired an interest in the property by virtue 

of that instrument, either when Pearson signed it or when she 

recorded the disclaimer, or by some other means, is immaterial 

to our analysis. It is of no consequence whether Pearson was 

8
the sole owner of the property when she signed the contract of 

sale on July 15, 1999, because we have held that an individual 

may contract to sell that which she does not own at the time of 

contracting so long as she is able to convey good title when 

required to do so by the terms of the contract. See, e.g., T. 

Nevil Ingram, Inc. v. Lunsford, 216 Va. 785, 786, 224 S.E.2d 

129, 130 (1976); Jennings v. Realty Developers, Inc., 210 Va. 

476, 479-80, 171 S.E.2d 829, 832 (1970); Spruill v. Shirley, 182 

Va. 342, 348, 28 S.E.2d 705, 708 (1944). Therefore, Gould could 

contract to sell the property at issue, and contractual language 

identifying Gould, with Pearson, as the “Seller” cannot be 

dismissed as mere surplusage. 

 Although we base our decision on the language of the 

contract, additional facts of record in this case demonstrate 

that G & M Homes understood that it was contracting with both 

Pearson and Gould for the purchase of the property. This 

knowledge on the part of G & M Homes is evidenced by its option 

deposit check made payable to both Pearson and Gould and by the 

negotiations between the parties that occurred after July 15, 

1999, in G & M Homes’ attempt to obtain Gould’s signature on the 

contract of sale. In fact, during those continued negotiations, 

G & M Homes executed at least one addendum to the contract. 

That addendum, like the original contract, referred to Pearson 

and Gould as the “Seller.” 

9
 In support of its motion for summary judgment before the 

trial court, G & M Homes also included Pearson’s response to a 

question in its second set of interrogatories. That response 

further demonstrates the scope of G & M Homes’ knowledge with 

regard to the identity of the “Seller”: 

 I, Shirley V. Pearson, could not execute that Contract 

of Sale, or go to closing, alone. Both my daughter and I 

were required to sign and to close. This is made clear on 

the face of the contract, and by the course of negotiations 

before and after July 15, 1999. All parties, and their 

agents, including Eric V. Zimmerman, Susan Rutherford and 

Jim Brooks knew that Herta Ann Gould’s consent was 

required. They knew of my intent to disclaim a portion of 

the property (I had decided to do so on or before May 17, 

1999) and knew that such a disclaimer would be drafted, 

signed and recorded. This, I believe, is why Mr. Grimm 

failed to take a copy of the contract we signed on July 15 

with him – he knew it was not valid and enforceable until 

it was reviewed and signed by my daughter, whom he knew was 

vacationing in Maine at the time. This is why Mr. Grimm 

provided earnest money checks made payable to me and my 

daughter. This is why Mr. Grimm continued to negotiate 

with my daughter to gain her consent after July 15, 1999 

and indeed, well after the disclaimer I signed on July 15 

was recorded. This is also why Mr. Grimm’s agent, Susan 

Rutherford, phoned me in early September to recommend a 

prospective purchaser other than her own principal, Mr. 

Grimm. This is why Mr. Grimm never suggested that Herta 

Ann Gould was not a necessary party to the sale until this 

suit was filed. This suit is completely contrived and 

belies the clear intent of the parties before and after 

July 15, 1999. 

 The circumstances in the present case are analogous to the 

facts in Raney v. Barnes Lumber Corp., 195 Va. 956, 81 S.E.2d 

578 (1954). There, a lumber company sought specific performance 

of an alleged contract to sell timber lands owned by a mother 

and her son. Id. at 957, 81 S.E.2d at 580. We concluded that 

10
there was no evidence that the son had ever signed any document 

that demonstrated his agreement to convey his one-half interest 

in the property and that he had not, either expressly or 

implicitly, authorized anyone else to agree to the sale on his 

behalf. Id. at 966, 81 S.E.2d at 585. Nevertheless, the lumber 

company insisted that it was entitled to specific performance 

with regard to the mother’s one-half interest since she had 

agreed to the proposed sale. This Court disagreed and observed 

that there was “not a word in the mass of correspondence between 

the parties which would indicate that either the [lumber 

company] or [the mother] ever had in contemplation dealing as to 

a one-half interest.” Id. at 969-70, 81 S.E.2d at 586. We 

reach the same conclusion in the present case. 

 As we have already stated, Pearson and Gould were, as a 

unit rather than separately, identified as the “Seller.” The 

contract included two lines at the end for the signatures of the 

“Seller.” However, the “Seller” did not execute the contract 

because Gould failed to sign it. Thus, the contract was never 

consummated. See C. & O. Ry. Co. v. Douthat, 176 Va. 244, 252-

53, 10 S.E.2d 881, 884-85 (1940) (contract naming husband and 

wife as “parties of the first part” never consummated because 

wife did not sign it). 

 That fact was evident to G & M Homes. The continued 

communications and negotiations between the parties after 

11
Pearson signed the contract of sale demonstrate that G & M Homes 

understood that it was contracting with both parties and that it 

did not yet have a complete and binding contract. 

CONCLUSION 

 For these reasons, we conclude that the circuit court did 

not err in granting summary judgment for Pearson and Gould with 

regard to G & M Homes’ claim for specific performance. We 

further conclude that the court did not err in finding, as a 

matter of law, that the contract of sale is not valid and 

binding between Pearson and G & M Homes. Accordingly, we will 

affirm the judgment of the circuit court.7

Affirmed. 

 7

 In light of our decision, we do not need to address the 

remaining assignments of error and, for that reason, have not 

included in this opinion discussion of certain facts and 

proceedings relevant only to those assignments of error. 

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