Present: All the Justices 

DOROTHY MARIE RUNION, ET AL. 

 OPINION BY 

v. Record No. 971364 CHIEF JUSTICE HARRY L. CARRICO 

 June 5, 1998 

FRANK HELVESTINE, III, ET AL. 

 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Roy B. Willett, Judge 

 In an amended bill of complaint, the plaintiffs, Dorothy Marie 

Runion and her husband, David L. Runion, sought to enjoin the 

alienation of Lots A and B, as shown on a certain plat, in which 

the plaintiffs claimed an interest under an oral contract whereby 

Dorothy W. Helvestine agreed to make a will devising the plaintiffs 

Lot A and an option to purchase Lot B.1 The chancellor dismissed 

the amended bill on demurrer, and we awarded the plaintiffs this 

appeal. Finding that the chancellor erred, we will reverse. 

 In addition to Dorothy Helvestine, the amended bill named as 

defendants her attorneys-in-fact, Frank Helvestine, III, and Eric 

Frank Helvestine, who are her son and grandson. Dorothy Runion is 

the granddaughter of Dorothy Helvestine, the daughter of Frank 

Helvestine, III, and the sister of Eric Helvestine. 

 Upon the death of her husband, Frank Helvestine, Jr., in 1986, 

Dorothy Helvestine became the owner of a tract of land containing 

approximately 25 acres which includes Lots A and B. Lot A contains 

 

1

 Dorothy W. Helvestine was still living at the time of the 

proceedings below, so a bill seeking specific performance of the 

alleged agreement to make a will would have been inappropriate. 
1.86 acres and Dorothy Helvestine’s residence, located at 5931 

Cotton Hill Road, S.W., in Roanoke County. Lot B contains 2.446 

acres and a frame house adjoining Lot A. 

 The amended bill alleged that Dorothy Helvestine “is currently 

not competent” and requested that a guardian ad litem be appointed 

to represent her. Jeffrey L. Dorsey, Esquire, was appointed to 

perform this function. 

 The amended bill also alleged as follows: 

After the death of Frank Helvestine, Jr., but before the 

incompetency of Dorothy W. Helvestine, [she] came to the 

Plaintiffs and requested them to move in with her at the 

above stated address in order to take care of her. In 

March, 1986, the Plaintiffs moved in with Dorothy W. 

Helvestine. At that time, they entered into an oral 

contract to make a will whereby if the Plaintiffs 

provided the day-to-day care for Dorothy W. Helvestine as 

long as possible, she would will to them the house and 

lot at the address above-stated. The Plaintiffs 

specifically relied upon these representations. Further, 

Defendant, Dorothy W. Helvestine, also stated that in 

addition to devising them the house and lot aforesaid, 

she would further devise to them an option to purchase a 

second tract of land. In furtherance of this oral 

contract to make a will, Dorothy W. Helvestine directed a 

survey to be made in April, 1991, a copy of which is 

attached hereto as Exhibit 2. Lot A represents the 

property that Dorothy W. Helvestine contracted to be 

devised by will to the Plaintiffs. Lot B is the property 

that was agreed the Plaintiffs could purchase upon the 

death of Dorothy W. Helvestine from her estate for the 

sum of $35,000.00. This $35,000.00 purchase price was 

agreed to in 1991 and the Plaintiffs were given first 

refusal as to this property upon which representations 

the Plaintiffs relied. 

 

 The amended bill alleged further that the plaintiffs 

“performed under the contract from March, 1986, to October, 

2
1993, when Dorothy W. Helvestine became so frail and infirm 

because of advanced age that her care required her to be 

transferred to the South Roanoke Nursing Home.” In addition, 

the amended bill alleged that “[d]espite the performance on 

behalf of the Plaintiffs done in reliance on the oral contract 

to make a will with Dorothy W. Helvestine, the Defendants, 

Frank Helvestine, III and Eric Helvestine, are denying that 

any such arrangement ever existed and . . . are taking any and 

all steps necessary to defeat the oral contract and work a 

fraud upon the Plaintiffs.” Finally, the amended bill alleged 

that Frank Helvestine, III, had entered into a contract for 

the sale of Lot B, as shown on Exhibit 2, to Strauss 

Construction Corporation (hereinafter, Strauss).2

 The amended bill prayed that the plaintiffs “be granted a 

permanent injunction preventing the Defendants, Frank 

Helvestine, III, and Eric Helvestine, from alienating Lots A 

and B [and] that Frank Helvestine, III, and Eric Helvestine be 

removed as attorneys-in-fact for Dorothy Helvestine.” The 

bill also prayed that the contract for the sale of Lot B to 

Strauss “be rescinded as inequitable.” 

 Strauss was permitted to intervene, and it filed a 

demurrer. Frank Helvestine, III, and Eric Helvestine filed a 

 

2

 The copy of the contract attached to the amended bill is signed 

only by Eric F. Helvestine as attorney-in-fact for Dorothy W. 

3
joint demurrer. Both demurrers asserted that the amended bill 

failed to state a cause of action because the terms of the 

oral contract to make a will devising the plaintiffs an option 

to purchase Lot B were not clear, certain, and definite. 

Strauss’s demurrer also asserted that the allegations relating 

to a right of first refusal were not clear, certain, and 

definite. (Strauss, Frank Helvestine, III, and Eric 

Helvestine will be referred to hereinafter as the defendants.) 

 By order, the chancellor severed all matters relating to 

Lot B from all other matters in the proceeding and directed 

the Clerk to establish a new file with respect to that lot. 

Thereafter, the chancellor sustained the demurrers as they 

related to Lot B, holding that the plaintiffs had “no 

enforceable property interest” in the lot. The chancellor 

also held that there was “no basis” for the plaintiffs to 

rescind the contract for the sale of Lot B to Strauss because 

the plaintiffs “have an adequate remedy at law for any damages 

they may sustain.”3 

 The plaintiffs have assigned two errors: 

1. The trial court erred in not ruling the [plaintiffs’] 

option to purchase Lot B for $35,000 upon [Dorothy 

Helvestine’s] death is a contract right protectable by 

the courts. 

 

Helvestine. 

3

 The chancellor also denied the plaintiffs leave to amend their 

pleadings with respect to Lot B, but that action is not assigned as 

error by the plaintiffs. 

4
2. The trial court erred in ruling [the plaintiffs] have 

an adequate remedy at law for damages and that injunctive 

relief and rescission of the Strauss real estate sales 

contract is not available to protect their option to 

purchase the land.[4] 

Option to Purchase

 The Statute of Frauds provides that “[u]nless a . . . 

contract . . . is in writing and signed by the party to be 

charged or his agent, no action shall be brought . . . [u]pon 

any contract for the sale of real estate . . . .” Code § 11-

2(6). The defendants agree, however, that an oral contract 

relating to land, including an oral contract to make a will 

and an oral option to purchase, is enforceable when there has 

been partial performance and certain legal requirements are 

met. 

 Those requirements are well-established. In Wright v. 

Pucket, 63 Va. (22 Gratt.) 370 (1872), this Court stated: 

[T]he principles upon which courts of equity have avoided 

the statute of frauds, upon the ground of part 

performance of a parol agreement, are now as well settled 

as any of the acknowledged doctrines of equity 

jurisprudence. From the numerous decisions on the 

subject the following principles may be extracted and 

briefly stated as follows: 1st. The parol agreement 

relied on must be certain and definite in its terms. 2d. 

The acts proved in part performance must refer to, result 

from, or be made in pursuance of the agreement proved. 

3d. The agreement must have been so far executed that a 

refusal of full execution would operate a fraud upon the 

 

4

 Since the plaintiffs do not assign error relating to their claim 

that they were entitled to a right of first refusal with respect to 

Lot B, we will not consider that claim. 

5
party, and place him in a situation which does not lie in 

compensation. 

Id. at 374; see also Story v. Hargrave, 235 Va. 563, 570, 369 

S.E.2d 669, 673 (1988); Woodbridge v. Outland, 212 Va. 157, 

160-61, 183 S.E.2d 162, 164-65 (1971); Patton v. Patton, 201 

Va. 705, 714-15, 112 S.E.2d 849, 856 (1960); Hill v. Luck, 201 

Va. 586, 589-90, 112 S.E.2d 858, 860 (1960); Everton v. Askew, 

199 Va. 778, 781-82, 102 S.E.2d 156, 158 (1958); Wright v. 

Dudley, 189 Va. 448, 455, 53 S.E.2d 29, 32 (1949); Mann v. 

Mann, 159 Va. 240, 245, 165 S.E. 522, 524 (1932). 

 Here, the arguments of the defendants focus upon the 

first two of the Wright v. Pucket requirements, viz., that the 

oral agreement relied on must be definite in its terms and 

that the acts proved in part performance must refer to, result 

from, or be made in pursuance of the agreement proved. The 

defendants maintain that the plaintiffs’ oral agreement 

relating to the devise of an option to purchase fails to 

satisfy either requirement. 

 Strauss argues that “[t]o be enforceable, the terms of an 

oral contract involving the conveyance of land must be clear, 

definite, and certain at the time the alleged agreement [is] 

entered into.” Here, Strauss says, when the agreement to 

devise an option was purportedly made in 1986 it was not 

definite in its terms because the land to be optioned had not 

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yet been clearly defined and the purchase price had not been 

determined. Strauss points out that the purchase price and 

the description of the property were not ascertained until 

1991, five years after the agreement was entered into, and it 

argues that what occurred in 1991 “does not make a legally 

unenforceable ‘agreement’ entered into in 1986 an enforceable 

contract in 1991.” 

 Frank and Eric Helvestine adopt Strauss’s argument but 

also argue that if the option to purchase Lot B was not 

granted until 1991 when the description and price of the lot 

were ascertained, the plaintiffs “have a problem” because they 

had already moved in with Dorothy Helvestine and were caring 

for her in reliance upon her 1986 promise to devise Lot A. 

Therefore, their moving in could not have been in reliance 

upon a promise made in 1991 with respect to Lot B. Hence, 

Frank and Eric Helvestine conclude, “[p]art performance and 

reliance were already in place . . . because of the 1986 

‘agreement’ as to Lot A” and “the 1991 option was without any 

consideration.” 

 We disagree with the defendants. This case was decided 

on demurrer. “A demurrer admits the truth of all material 

facts properly pleaded. Under this rule, the facts admitted 

are those expressly alleged, those which fairly can be viewed 

as impliedly alleged, and those which may be fairly and justly 

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inferred from the facts alleged.” Rosillo v. Winters, 235 Va. 

268, 270, 367 S.E.2d 717, 717 (1988); see also W. S. Carnes, 

Inc. v. Chesterfield County, 252 Va. 377, 384, 478 S.E.2d 295, 

300 (1996). 

 We are of opinion that when the allegations of the 

amended bill are fairly read they state a case for an 

agreement requiring Dorothy Helvestine to do two things in 

consideration of the plaintiffs’ moving in with her and 

providing her day-to-day care as long as possible, (1) make an 

outright devise to them of the house and lot located at 5931 

Cotton Hill Road, S.W., and (2) devise them an option to 

purchase a second tract of land. While the terms of the 

option were not then certain and definite because the land and 

the price to be paid therefor were not specified, the terms 

were made certain and definite in 1991 when Lot B was created 

at Dorothy Helvestine’s direction and the parties agreed upon 

a purchase price of $35,000. 

 Strauss has not cited, nor have we found, any authority 

for its contention that, for an oral contract to be 

enforceable, its terms “must be clear, definite, and certain 

at the time the alleged agreement [is] entered into” and that 

nothing occurring later can “make a legally unenforceable 

‘agreement’ . . . an enforceable contract.” We think 

subsequent occurrences can make enforceable an otherwise 

8
unenforceable contract, provided the rights of innocent 

parties without notice have not intervened. 

 It has yet to be determined whether Strauss occupies the 

position of an innocent purchaser without notice. Whether 

Strauss had notice of the plaintiffs’ alleged option rights is 

a matter of defense that was not settled with the sustaining 

of the defendants’ demurrers and remains a question subject to 

proof in the event of a trial on the merits. 

 With respect to the argument of Frank and Eric Helvestine 

that there was no consideration for what they call “the 1991 

option,” we hold that no additional consideration was 

necessary. What was done in 1991 merely filled in the details 

of the 1986 agreement and became part and parcel of the bundle 

of rights the plaintiffs acquired at the outset in 

consideration of their moving in with Dorothy Helvestine and 

providing her day-to-day care as long as possible. That 

bundle consisted of a promise to devise what became Lot A and 

a promise to devise an option to purchase what became Lot B, 

and the plaintiffs’ acts of part performance resulted from or 

were made in pursuance of both those promises. 

 Even so, the defendants submit, there are no allegations 

in the amended bill as to time of performance, conditions of 

exercise, or payment arrangements. However, because the 

alleged agreement involved the making of a will, the time of 

9
performance is implied from the event that would make the will 

effective, i.e., the death of Dorothy Helvestine. 

 The defendants do not suggest what conditions of exercise 

are lacking from the allegations or whether such conditions 

would relate to the formation of the contract or merely to 

matters of performance, the latter being non-essential 

allegations. Townsend v. Stick, 158 F.2d 142, 145 (4th Cir. 

1946). 

 And the defendants are correct in saying that the alleged 

agreement provides for a purchase price of $35,000 without 

specifying the terms of payment. But, in such circumstances, 

the law implies that the purchase price will be paid in cash. 

See Lacey v. Cardwell, 216 Va. 212, 221, 217 S.E.2d 835, 842 

(1975) (authority of agent to offer property privately without 

specification of terms of payment implies cash sale); see also

A.B.C. Auto Parts, Inc. v. Moran, 268 N.E.2d 844, 847 (Mass. 

1971) (contract for sale of land silent on payment terms 

implies agreement to pay cash); Kidd v. Early, 222 S.E.2d 392, 

404 (N.C. 1976) (option to purchase real estate not specifying 

method of payment implies price will be paid in cash). 

Adequate Remedy at Law

 As noted previously, the chancellor held that the 

plaintiffs were not entitled to rescission of the contract for 

the sale of Lot B to Strauss because the plaintiffs have an 

10
adequate remedy at law for any damages they may sustain. The 

plaintiffs argue that when a right to acquire an interest in 

land is involved, money damages are inadequate because there 

is no substitute for the land itself, and equity will enforce 

the right in an appropriate proceeding. 

 The defendants argue, on the other hand, that the 

plaintiffs do have an adequate remedy at law, although they 

differ in the measure of damages the plaintiffs may recover. 

Strauss suggests that the measure is “the reasonable value of 

the services [the plaintiffs] purportedly provided Dorothy 

Helvestine” while Frank and Eric Helvestine suggest that the 

measure is “the difference between the fair market value of 

Lot B in its present condition, and the $35,000 ‘option’ 

price.” 

 We agree with the plaintiffs that if they establish an 

interest in Lot B, an award of damages would not provide an 

adequate remedy. In Story v. Hargrave, supra, we reversed an 

award of $1,000 per month as compensation to a couple who 

cared for an elderly woman in return for her promise to leave 

her property to them in her will. We held that the couple’s 

claim was not compensable in damages and that they were 

entitled to the benefit of their contract in the form of the 

transfer of the property to them at the promisor’s death. 235 

Va. at 569, 369 S.E.2d at 672-73. In Everton v. Askew, supra, 

11
this Court affirmed the enforcement of an oral agreement made 

by a husband and wife whereby she was to devise to him all 

real estate he had conveyed to her; instead, she left the 

property to her sister. We said, “[t]here is no way [the 

husband] can be put in statu quo except by enforcing the 

agreement.” 199 Va. at 784, 102 S.E.2d at 160. And in Wright 

v. Dudley, supra, we held that an oral agreement by an elderly 

woman to make a will devising her real estate to a caretaker 

in return for the latter’s maintenance and support should be 

specifically enforced. 189 Va. at 458, 53 S.E.2d at 34. We 

stated: “Contracts of this kind are taken out of the 

operation of the statute of frauds and enforced in equity 

because the remedy at law is not adequate . . . .” Id. at 

455, 53 S.E.2d at 32. 

 It does not follow, however, that the plaintiffs are 

entitled to rescission of the contract for the sale of Lot B 

to Strauss. They are not parties to that contract; they 

allege no misconduct on Strauss’s part in inducing the 

contract; the only basis they allege for rescission is that 

the contract is inequitable — they assert none of the usual 

grounds for rescission, i.e., fraud, mistake, illegality, 

disability, concealment, undue influence. See Ferry v. 

Clarke, 77 Va. 397, 409 (1883). 

12
 This does not mean that the plaintiffs are without a 

remedy. The amended bill contains an explicit prayer for a 

permanent injunction preventing Frank Helvestine, III, and 

Eric Helvestine, Dorothy Helvestine’s attorneys-in-fact, from 

alienating Lot B. If the plaintiffs prove the allegations of 

the amended bill and it is determined that Strauss had notice 

of the plaintiffs’ claim to Lot B, the chancellor will have 

injunctive relief at his disposal to protect the plaintiffs’ 

rights in that lot. 

 For the reasons assigned, the judgment of the chancellor 

will be reversed, the plaintiffs’ amended bill reinstated, and 

the cause remanded for a trial on the merits consistent with 

the views expressed in this opinion. 

Reversed and remanded. 

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