Bowman v. Newton

101 S.E. 882, 126 Va. 445, 1920 Va. LEXIS 2

• Court: Supreme Court of Virginia
• Decided: January 22, 1920
• Status: Published

Opinion

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court.

It is earnestly argued for appellant that the contract of sale in question was with the parties to the suit through their counsel, subject to the confirmation thereof by the court, and that having been confirmed by the court the contract became as binding upon the court as upon the parties and evidences what is in truth a private ánd not a judicial sale, citing Christian v. Cabell, 22 Gratt. (63 Va.) 82, 97.

In the view' we take of the case, considering' the provision. fixing the date or time for the completion of the contract and the absence of any provisions therein with respect to possession and interest, it is immaterial whether the contract of sale in question be regarded as evidencing a' private or a judicial sale. In either case the contract was silent both as to iilterest on unpaid purchase money and as to when possession was to be taken by the vendee. As appears from the statement preceding this opinion appellant himself testifies in the cause' that not until after the decree of July 10, 1917, was entered, was there any assent on the' part of the owners of the property (and that through counsel who was not attorney for all of them) to appéllant’s taking possession before payment of the purchase money; and that it was not until May 4, 1918, that the subject of interest in unpaid purchase money was even mentioned between appellant and such counsel! It also 'appears from the aforesaid statement thát there was at no timé' communicated to the property owners or to Mr. Tomlin as counsel any proposal or offer of purchase by appellant which was -conditioned upon possession of the property being allowed to be taken by appellant prior to the completion of the contract by' the payment of the purchase money; and that there was no meeting of minds on any contract of sale prior to the written proposal or offer of purchase made by appellant to date June 25, 1917, and that proposal was silent both as to interest and possession. If we could regard that proposal as having been then accepted by the owners of the property through their counsel and that the contract of sale was thus at that time consummated, still the contract of sale would have been one which would have been silent on the two subjects mentioned. And there is no claim even in the testimony, for appellant that the written proposal was supplemented at the time it was made by any mention of either of said subjects even if the written proposal had been incomplete and could have been so supplemented. The evidence in the cause however admits of no other conclusion than that the contract of sale was not consummated until the decree of July 10, 1917, was entered accepting the proposal. Then and not until then was there a contract of sale; and such contract was thereupon evidenced by the proposal and decree when read together. They are both set out in the aforesaid statement preceding this opinion and when read together they disclose a contract which on the two subjects aforesaid, interest and possession, is absolutely silent, as aforesaid.

As to the taking of possession by appellant: The date or time fixed by the said contract of sale for the completion of the contract was when the United States government should make settlement with the appellant, as set out in said written proposal. That was the date or. time fixed by the contract for the payment of the whole purchase money and the delivery of the deed of conveyance. If we were to regard the testimony of Mr. Tomlin, which is in conflict with that of and for the appellant on the subject of the assent to the taking of the possession referred to in the statement aforesaid, as never having been given in the cause, and were to take the testimony of appellant as stating the facts on that subject, still appellant took possession of the property purchased prior to the completion of the contract without any new consideration moving therefor from him. We have-no need therefore, to pass upon said conflict of testimony. And even if we could regard the owners of the property as having assented. through Mr. Tomlin to such advance taking of possession without any stipulation as to interest, that would not alter the case. In such case equity implies a promise on the part of the vendee to pay interest on the unpaid purchase money from the date on which he takes possession. Barnett v. Cloyd’s Ex’rs, 125 Va. 546, 100 S. E. 674.

The decree of July 15, 1918, aforesaid under review must, therefore, be affirmed.

Affirmed.