Allemong v. Augusta National Bank

Citations

• 103 Va. 243
• 48 S.E. 897
• 1904 Va. LEXIS 30

Syllabus

<p>1. Contracts — Case in Judgment — Construction—Distribution of Funds— Power of Male — Dependent Covenants. — In order to effect a rescission in part of a contract of sale of real estate, appellees surrendered $21,000 of .their individual assets to the purchaser, and the purchaser released a part of the land which had been conveyed to him. Appellants and appellees, who were the vendors of the land, then entered into a written agreement between themselves, by which they agreed that the land released should ■ be held in the name of a trustee, and be sold by appellees whenever the same could be sold for $100,000 or more, or, by consent of all parties, for less, and that appellees should be repaid the $21,000 surrendered by them, without interest, and that the residue should be divided between appellants and appellees, equally. Suit was brought by the assignee of one share of the $21,000, for the sale of the land, and payment of the amount due him.</p> <p>Meld: 1. It cannot be fairly presumed that, if from any cause a sale in pais could not be made for the price named, the parties intended to relinquish their legal right to resort to a court of equity to compel a sale, or only to invoke the aid of that tribunal on the terms of surrendering a priority to which they were entitled by the law and facts of the case, and hence this court has power to decree a sale and a distribution of the proceeds.</p> <p>2. The limited power of sale given the appellees and the scheme of the distribution of the proceeds of sale are not dependent covenants, but are separate and independent of each other.</p> <p>3. The appellees should be first paid the $21,000, without interest, and the residue divided equally between the appellants and the appellees. It is not a case for a ratable distribution. ' 4. This would be the proper distribution independently of the contract, and the contract is reasonably susceptible of this construction.</p> <p>2. Contracts — Construction.—Where a contract ^ admi