Donnally v. Parker

Maxwell, J. Milton Parker, William Donnally and A. F. Donnally made, and entered into the following agreement, bearing date the 12th day of March 1856. We hereby agree to sell and to convey to Milton Parker, our interest in a tract of land patented to John Steele of 27,000 acres, and a tract of land lying on the waters Poco-talico, and running into Elk river, for seventy-five cents per acre, one-third of the purchase money to be paid in good acceptances, not to run more than three months, and residue of said purchase money to be paid in equal installments of one, two and three years, with interest from date of deed; but it is understood and agreed that the said Parker is to have till [323] the first day of July, 1856, to elect whether he will take either or both tracts of said land upon the terms, and. conditions aforesaid, and it is understood and agreed that the said Parker may elect either of said tracts of land, but is not compelled to take both, but should he elect to take neither, then this contract is null and void; but should said Parker elect to take said tract or either of them, he binds himself to pay for said land at the rate of seventy-five cents per acre for land so elected to be taken by him in.the manner aforesaid. ■Witness our hands and seals, date as above. M. Paricer, (Seal.) Wm. Donnally, (Seal.) A. F. Donnally, (Seal.) This agreement was acknowledged by Parker and William Donnally on the day after its date, and by Andrew F. Don-nally on the 17th day of March, 1856, on which last day it was admitted to record in the clerk’s office of the county of Kanawha. The proof in the record is that Parker elected to take the interest of the Donnallys in the tract of land described in the contract as patented to Steele', upon the terms named in the said contract, and that the said Parker notified the said Donnallys of such election before the 1st day of July, 1856. That on the 30th day of September, 1856, the said Donnallys executed, acknowledged and delivered to the said Parker a'deed conveying to him all their interest in and to the said Steele tract of land. That the said Parker afterwards, on the 15th day of October, 1856, sold all his interest in the Steele tract derived from the said Donnallys, to Hickock and Allen, who at that time took possession thereof, and have from that time, by their agents, continued in possession of the same. That the deed from the Donnallys to Parker was recorded on the 3d day of April, 1858; and that after the said Hickock and Allen purchased and took possession of the said tract of land, and before the time when the said deed from the Donnallys to Parker was admitted to record, judgments were obtained against the said Donnallys. The sole question for determination here, is whether or not the said judgments so obtained are liens upon the interest of the Steele tract of land conveyed by the Donnallys to Parker. It is insisted for the appellees that the paper purporting to [324] be an agreement, bearing date on the 12th day of March, 1856, is nothing more than a proposition on the part of the Donnallys to sell to Parker the land mentioned in it, if the said Parker should elect before the 1st of July following to-buy the land; and being only a proposition to sell, they have a right to withdraw it at any time. The paper was not only a proposition to sell, but a covenant that such proposition should remain open for acceptance until the time specified in it; but whether the proposition could have been withdrawn or not, does not arise in this case, as it was not in fact withdrawn, or any attempt made to withdraw it, and became complete on the election of Parker to take the Steele tract under it, upon giving to the Donnallys notice of his election. An executory contract was thus completed between the Don-nallys and Parker, as to the Steele tract, that might have-been specifically executed in a court of equity. The Boston and Maine Railroad Company vs. Bartlett, 3 Cushing, 224. The next question is as to the effect of the recordation of this contract to protect the property mentioned in it, from the liens of the judgments against the Donnallys, under the fifth and sixth sections of chapter 74 of the Code, p. 474, which sections contain the same provisions found in the Code-of Virginia, in force at the time the contract was entered into. When Parker made his election under the contract, and gave notice of such election, his equitable interest in the-Steele tract of land related back to the date of the contract. Daniels vs. Davison, 16 Vesey, Jr., 249; Broome vs. Monch, 10 Vesey, Jr., 597; Seton vs. Slade, 7 Vesey, Jr., 265; Paine vs. Meller, 6 Vesey, Jr., 349; Steinback vs. Stewart, 11 Wallace, 566. The provision in the contract giving to Parker the right of election was sufficient to put the creditors of the Donnallys on inquiry, and they were bound to inquire whether such election was made or not. Smith vs. Low, 1 Atkyns Rep., 489; French vs. The successors of the Loyal Co., 5 Leigh, 627. The decree complained of will have to be reversed, with costs to the appellants, and the cause remanded. The other judges concurred. Decree reversed.