The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1872-04-06
IMPORTANT DECISION
OF THE SUPREME COURT OF AprEAIs OF
.r VIRGINIA sl-f.i,c} -
s,yFt &tsT AZ 2aflFssst
& On the Doctrine Of
SPECIFIC PERFORMANCE. "a
Christian vs.. Cabcll, Trustee, and ais.

This case was decided by the Supreme
Court of Appeals OH Wednesday. The prin-
ciples settled are so important that we pre-
sent the following full and carefullysprepa
abstract Of it for the use of the public and
the legal profession, in advance Of the pub.
iication of the official report: "7>s
FROM TILE CORPORATION COURT OF LYNcnsuRG.
i; a contract to buy and sell real estate, with the
understanding that tie Courts sanction; h the saie
VIII nc obtained tho fact that such sanction is after
wards obtained, does not constitute It judicial sale
Al agreement To make good deed Is an agree
msnt TO conieya gopd title, - -.
III. A purchaser u i judicial sale Is quaSi oarfy
Iy. If purchaser, knowing OF a doubt about thc
que accepts Che tile rendered and takes pnsseson
e o from afterwards setting up any claim
", " speeac performance win be decreed in some
Instances ~, whefe the vendor ready to comply with
sendees Tishs'vni BE- preItdiced thercbys or Ii die
was Ano"h 10 Inc vendor ut tho Gate of the
vi. Where property l. DESTROYED after the con-
contract sucias to change thcrigt OF propelty and
vest 1t In the purchaser! y '''N
VI H., The o@sns,slp @ commences I'm equity from
not Otherwise If the sGea ss.e P be
and the court will not decree specific pcrformancc
Of the contract aud rice rerSd. 80, = =,
On the S0th of June, 1870, J. 4. Christian
entered into an agreement with Z. L. Brown
and wife, acting by and through their agents,
A. f. Robertson s. Co., by which Christian
agreed to buy, and Brown and wife agreed
to sell him, certain property in the city of
Lynchburg known as the I" Lynchburg
Female Seminary at that time occupied by
| Brown and wife, and being the, same pro
perty conveyed to William D. Cabell, trustee
for Mrs. Brown and her children, by Mayo
| Cabcll. BY the agreement, Christian agreed
to pay for the property $4,000, rs follows
81 900 cash OIL the delivery to said Christian
of gool deed to said property, and the re-
Sidue in five equal annual instruments, in one,
two three, four, and FIVE years, from the de-
livery of said deed, bearing interest from the
delivery of said deed at the rate of six per
cent. And by said agreement Brown and
wife contracted to deliver the property to
Christian not later than the 18th of July.
| 1870. Christian was to execute his bonds
| for the deferred payments, secure them by a
| lien on the property, and Brown and wife
agreed to procure theapproyal of the proper
court to this contract for sale without costs
to Christian, And Christian agreed to Ge-
post $500 of the cash payment as earnest
money. ...s.,.. -.....s.... ...
On the 9th July, 1870, William D. CabeIl,
trustee for Margaret B. Brown and children,
| fled her bill i'll the Corporation Court OF
Lynchburg against Robert L. Brown and
| Margaret B. his wife, and their infant
children Robert d.. Mary {. B., William
c., Lucy r., and Joseph G. Brown, defend
and the trust, and alleging that the interests
of the infants would be promoted BY the
sale agreed to he made to Christian as aforc-
said, and asking the sanction of the court
thereto the answers of the adults and the
infants by guardians ad Rtem being filed.
and the cause coming on, on these and the
depositions Of witnesses az to the propriety
| of the sale, Il decree WAS rendered IN
this cause on the same day-yiz., july 9th
tS70-rasifYiDg the contract to sell, entered
| into on the 3Gth OF June, 1870, and directing
William .. Cubell, the trustee, to convey the
property in fee simple to Christian (rcserYine
! the lien for the deferred Payments)as soon d;
Christian should comply Wit. his stipulations
in said contract. Christian was not made d
party to this suit. 4 deed was prepared by
Caben, trustee, under this decree of the court,
to be delivered to Christian, but no abstrlc!
of the title was rendered with it by the ven.
doris, and Christian bad to employ counsel to
examine and satisfy himself about the title.
i His counsel reported that there was an in.
c,lmbrance by deeds made some years before
by former owners of the property, some o
whom were dead, to secure certain advances
to a building association, and advised hln
that the title offered by the deed from Cabell
trustee, was imperfect until these deeds were
released. Nothing was done by Cabcll, trus
tee, or any of the vendors, to remove this
flaw in the title, and thus matters stood on
the 18th July, 1870, when Christian was tc
have taken possession under the contract, ano
when the possession was formally rendered
to him, but not accepted. On the - day OF
August, 1870, Christian senta written notice
to Ca6ell, trustee, through his counsel
notifying him that he declined to, ac
cept the deed offered to the property
on account of this lien in favor of the Build
ing Association thereon. which he saw ht
was iguorunt Of at the time of the contract
and III consequence thereof. renounclDg The
purchase andaskiug that the contract be de
, liyered up and cancelled. On the 10Th day Of
August, 1870, il rule was awarded against
Christian in the suit Of :" Cabcll, trustee, rs
Brown and ais" to which he had not beer
;. made party, requiring him to show cause
on the 10Th August, 1870, IL any he could
why be should not proceed to execute thu
said contract of 30th June, 1870, tor sale 4:
aforesaid. On the 10th August, 1870, thii
rule was enlarged to tue 1st day Of the
next September term of the Court
On the 1st day Of September, 1870, al
the buildings and improvements OH this loI
were destroyed by fire, the property wa'
uninsured, and there was nothing left bu
the lot and debris. On the 10th day of Sep
tember, 1870, Christian filed his answer t.
the rule, in which he first protested agains
the form of proceeding, alleging that the salt
!. was not judicial sale, and that therefore thu
rules applicable to Judicial sales did not ap
, ply TO this, case, that be was no party Il
. this suit, and could not be brought in by
. the rule ntss and required to answer; tha
! the contract of 30th June, 1870
{ was no contract, as it; was such tina
could not be made by Brown and wife
:. owing to Browns relations to the property
and the coverture of bis wife rendering i
not mutually binding, alleging that the deee
rendered was not good deed, and setting
i out several important ilnperfections iii ;ths
j deed and title to the property, principa
among which was the lien in favor Of tht
Building Association before alluded to; tha
j the buildings were destroyed on the lst o.
September, 1870, without any fault OF his
and partially owing to the abandonment
thereof by Brown and wife, although h
' had notified them not to, do 50, and that ht
twould not occupy it, and that the con
tract for sale was not completed solely: be
cause the vendors were unable TO- comply
with their part Of it, and asking the court K
dismiss him with bis costs and discharged TIT
4 rule. On this answer, the court on the l3tt
!. Of September entered decree refusing thel
j to discharge the;rule, and referred the cause
4 to 4 commissioner to ascertain the state o