Ferry v. Clarke

Citations

• 77 Va. 397
• 1883 Va. LEXIS 71

Syllabus

<p>1 Specific Performance—Rescission—Statu quo.—Applications for specific performance of contracts are addressed to the sound discretion of the court. So likewise are applications for rescission thereof. Rescission will not be decreed unless the court can place the parties in statu quo. Both are often refused, and the parties left to their remedies at law.</p> <p>2. Idem—Idem—Amended Bill—Laches.—In suit for specific performance, the court may allow the plaintiff to amend his bill and ask, and in a proper case there may be decreed a rescission of the contract. But where, by the conduct of him thus amending and asking rescission, the specific performance of the contract has become impossible, rescission will be denied.</p> <p>3. Idem—Rescission—Entire Agreement.—If rescission be decreed, it must be of the entire agreement, and not of parts thereof.</p> <p>4. Idem;—Idem—Case at bar.—W. purchased “Poplar Grove” at $12,037 and paid all but $2,795.75. In i860, W., Mrs. C., and B. agreed under seal that B. exchange “Lammermoor” with Mrs. C. for “Millers,” and convey it to W., who in consideration thereof and of $4,000, would convey Poplar Grove, priced at $14,000, to her. She paid the $4,000, and took an indemnifying bond with security, but the lien on Poplar Grove for the unpaid balance remained unsatisfied. In 1867, B. and Mrs. C. sued W.’s representatives for specific performance (no conveyances having been made); and for sale of Lammermoor to pay off said lien; to enforce which W.’s representatives had brought suit. In 1869, the circuit court decreed specific performance, and also sale of Lammermoor, to relieve Poplar Grove. Mrs. C. sold parts of Poplar Grove to six different purchasers, who paid her $2,608, and received conveyances. In May, 1878, a decree was entered to sell Poplar Grove to pay off the lien thereon. It was sold. D. purchased it, Mrs. C. going his security for $2,756.25. Sale was confirmed and deed made. In November, 1878, in suit of B. and Mrs. C. fo