Capehart v. Hale

Citations

• 6 W. Va. 547
• 1873 W. Va. LEXIS 63

Syllabus

<p>Syllabus.</p> <p>In a HU in. equity preferred by an executor, as sucb, lie ought to describe himself as the executor of his testator.</p> <p>It is not proper for an executor who sues, to describe himself merely as “personal representative” of a person deceased.</p> <p>The promise or agreement by one person to convey or transfer land or-an interest therein to another, and either the actual payment by the latter of the consideration, or the promise or agreement by him¡ to pay it, together, c onstitute an executory contract for the sale of. land. ...</p> <p>The whole contract — including the consideration — need not he in writing. But so much as is required to be embodied, memorized or noted in writing, must be signed by the party to bo charged by the contract.</p> <p>When under a contract not signed by the purchaser, he has taken possession, a court of equity, at the instance oí the vendor, will decree specific execution.</p> <p>Without such taking or retaining of possession, though the contract was signed by the vendor, and accepted by the purchaser, the former cannot, merely by reason thereof, enforce the contract against the latter.</p> <p>When a party who has made and signed a contract in writing for the sale of land, sues a purchaser for specific execution, in order to enforce a sale of the land and application of the proceeds to the satisfaction of the consideration, he should allege that the defendant promised or agreed to pay the consideration.</p> <p>The plaintiff, however, need not allege that the contract or agreement to pay the consideration, was in writing and signed by the defendant,</p> <p>But if the defendant, by answer, denies the promise or agreement, on his part, or if, by plea or answer, he admits the contract, but relics on its not having been in writing and signed by him, the plaintiff must prove that the contract was made in writing and signed by the defendant.</p> <p>Or if neither the contract, nor any memorandum or note of it, was in writin