McKee v. Bunting, McNeal Real Estate Co.

Buchanan, J. (after making the foregoing statement), delivered the opinion of the court. There is no pretence that Mrs. McKee had erected upon the land conveyed to her a dwelling house costing $4,100, as she had the option to do under her offer of purchase, or that she had paid the $550 which she undertook to pay in the event she did not erect such dwelling house; or that she had paid more than $3,000 of the $3,550 which is stated in the deed as the consideration to be paid and as having-been paid by her. It seems to be well settled in this State, and generally in this country, that the consideration clause in a deed conveying land is open to explanation, and that in an action by the grantor to recover the purchase price, or by the grantee to recover it back, parol evidence is admissible to show that the consideration actually paid, or promised, is other than that recited in the deed, or to contradict the recital in the deed that the consideration has be’en paid; but-it is not admissible to alter or contradict the legal import of the deed. Harvey, &c., v. Alexander, 1 Rand. (22 Va.) 219, 10 Am. Dec. 519; Trout v. N. & W. Ry. Co., 107 [646] Va. 582, 59 S. E. 394; Watkins v. Robertson, 105 Va. 569, 54 S. E. 33, 5 L. R. A. 1194, 115 Am. St. Rep. 880; 2 Minor on Real Prop., sec. 1158; 2 Dev. on Deeds (3rd ed.), secs. 822, 823, 830; Browne on Parol Ev., sec. 92; 2 Sugden on Vendors (8th Am. ed.), p. 338, note b, where many cases are cited; 4 Wigmore on Ev., sec. 2433; Beach on Mod. Law of Contracts, sec. 275; Bishop on Contracts, sec. 386; 2 Page on Contracts, secs. 1203, 1204; Hebbard v. Haughian, 70 N. Y. 54, 58-59. As we understand the argument of the counsel for Mrs. McKee, he does, not controvert the rule as above stated, but his contention is that th’e provision in the executory contract of sale for the erection of a dwelling house on the lots to cost not less than $4,100 was not a part of the consideration, but was one of the conditions upon which the lots were sold; and that since such condition was not carried into the deed th’e contract between the parties was altered to that extent, and the deed became “the exclusive and conclusive evidence of the terms of purchase, and prohibits the reading into the deed” that provision of the contract which the parties themselves abandoned. And he further insists that the provision as to the erection of the $4,100 dwelling house contained in the contract of sale was not only omitted from the deed, but that the deed contains another provision in lieu thereof, viz.: “That no dwelling house should be built on any of th’e said lots to cost less than twenty-five hundred ($2,500.00) dollars”; and that the contract of sale was, therefore, not admissible in evidence since it contradicted the express conditions of the deed. It clearly appears from a comparison of the two writings that that condition or covenant in the deed was not in lieu of or a substitute for the provision as to the erection of a $4,100 dwelling house. On the contrary, the contract of sale provides that “when the 'entire purchase price is [647] paid a deed with general warranty is to be executed with the following covenants * * *” Among these covenants is one (the fifth) that no dwelling house shall b'e built on any lot fronting on the Boulevard (as do the lots in question) costing less than twenty-five hundred dollars. That covenant was, therefore, not only not in lieu of but had nothing to do with the provision in the consideration clause of the contract of sale providing how the purchase price might be paid. As we understand and construe that contract, the provision in the consideration clause for the erection of a $4,100 dwelling house was a benefit which would enure to the vendor, and was therefore a part of the consideration it was to receive for the property. The vendor was a real estate company interested in having houses built upon lots sold, and such improvements would enhance the value of its other lots. Mrs. McKee had the option, under the contract, to build such a house; but if she did not, she bound herself to “pay said Bunting, McKeal Beal Estate Company a further sum of five hundred and fifty dollars, this amount being allowed for the erection of said building, notwithstanding I have a deed for said lots. * *” That the real consideration for the lots purchased and sold was $3,550 is clear, we think, from the language of the consideration clause in the contract; but the language of the deed leaves no room for doubt on that point, for it declares that the conveyance was made “for and in consideration of the sum of thirty-five hundred and fifty ($3,-550) dollars”; and the evidence of the secretary of the real estate company shows that the $3,000, which the contract of sale provided was to be paid at that time, was paid, leaving $550 of the consideration unpaid. That sum was not payable when the deed was delivered, which was only a few days after the contract of sale was entered into, and it did not become payable until the real estate company [648] notified Mrs. McKee that it conld assure water, sewerage and electric lights for the use of the dwelling house. This notice was not given until January, 1911. When that notice was given it became the duty of Mrs. McKee either to erect the $4,100 dwelling house or to pay the said sum of $550, notwithstanding, as the contract provides, she had “a deed for said lots.” She declined or failed to erect the dwelling house, and the $550 at once became payable in money. But if it were true, as insisted by the counsel of Mrs. McKe’e, that when the deed was executed by her vendor and accepted by her the contract for sale was merged for all purposes, and that the rights of the parties thereafter rested solely in the deed, the evidence of the secretary of the company, which was clearly admissible, showed that only $3,000 of the $3,550, the consideration stated in the deed, had been paid. This being so, it would leave Mrs. McKee owing $550 on the purchase price of the lots, with interest thereon from the date or delivery of the deed. If the court could not have rendered judgment for that sum because of a variance between the plaintiff’s pleading and its evidence, the court ought to, and no doubt would, have given the plaintiff leave to amend its pleadings in accordance with the provisions of section 3384 of the Code. That section applies to motions heard by the court as well as to jury trials. Carter v. Grant’s Admr., 32 Gratt. (43 Va.) 769, 777-8. It is remedial and should be construed liberally (Langhorne v. Richmond City, 91 Va. 364, 367, 22 S. E. 357), especially where the amendment will further the ends of justice and permit the controversy to be determined on its merits. 3 Am. & Eng. Enc. of L. & P., 617, 744-748. The plaintiff’s claim, whether evidenced by the contract of sale or by the deed, was the unpaid purchase price due from Mrs. McKee on the lots sold her. The evidence in [649] the case, excluding the contract of sale, showed beyond question that there was still a balance of $550 of purchase money due from Mrs. McKee, and it is hard to see how we could deny the real estate company’s right to recover and at the same time satisfy the demands, of common justice. It is difficult to conceive of a case in which a more palpable wrong would be done, or a worse example set, by suffering an agreement to be broken with impunity. It is clear to us that the trial court did not 'err in overruling Mrs. McKee’s motion to exclude the contract of sale, and that upon the whole case there is no error in the judgment complained of to the prejudice of the plaintiff in error. Affirmed.