Long v. Colston

21 Va. 98

Opinion

By the court.

Footnotes

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The court is of opinion, that upon the true construction of the covenant upon which this suit is brought, the appellant was entitled, on the facts set forth in the bill of exceptions, to this action against the appellee! and that his recovery in-this action cannot, in any manner be affected by a regard to what may be the value of the estates in' England, the appellee being bound immediately on the execution of the deed, as contemplated in the covenant, to pay the $5000 in cash, and 815,000 in lands at the price of $Z per acre, as stipulated in the covenant, whatever may be the real value of the estates in England. As to the objection on the part of the appellee, that this action did not lie- until the title to theEnglish estate was conveyed by means of ñne andrecovery, according to what is alleged to be requisite by the laws of England to pass the estates aforesaid: that objection is equally reprobated by the terms of the covenant itself! by the cotemporaneous exposition of the parties in relation thereto,* and by the delay of the appellee for so great a length of time, to take the objection aforesaid.

But while the court is of opinion that the recovery of the appellant in this action, is not to he delayed for the final adjustment of the estates in England, and that the amount of the recovery in this action, cannot be at all affected by what may be the value of the said estates, yet the court for the satisfaction of the parties, expresses its opinion to be, that if it shall appear on the final adjustment of the said estates, that the value thereof is less than '320,000, the appellee will be entitled to relief for such deficiency; the court being of opinion that the 5520,000 aforesaid was only intended as an advance, subject to tiie final adjustment of the value of the said estates, and not as a gross sum intended to be given therefor.

The judgment of the General court is therefore to be reversed, and the cause to be remanded for a new trial, on which the instructions formerly refused, are to he given if required.

Brooke absent.