Shirley v. Rice ( 1884 )

Lewis, P.,

delivered the opinion of the court:

The appellant was the purchaser of a certain parcel of land under the decree of the circuit court of Shenandoah county. The terms and conditions of sale were prescribed by the decree and were duly advertised. They were known to the appellant when he bid for the land and were referred to in the written memorandum of sale which he signed on the day the sale was made. That memorandum, along with a similar memorandum, signed by the appellee, Rice, who became the purchaser, under the same decree, of an adjacent parcel of land, was returned by the commissioners, with their report of sale and asked to be read as a part of their report. The court confirmed the report, and thereby confirmed the sale upon the terms as advertised and reported. There was no reservation of a right of way over the land purchased by the appellee in the decree of sale, or in the advertisement of sale, or in the written memoranda of the purchasers, or in the decree of confirmation. The only reference to any such reservation is in what is called “the supplemental report,” which was signed by one only of the five commissioners of sale and which does not appear to have been treated as a part of the report or in any way to have been noticed by the court, either in the decree of confirmation or otherwise. Such was the condition of the record when the special commissioner conveyed to the appellee, Rice, the land of which he became the purchaser, and when the latter, nearly three years after the sale and its confirmation, conveyed the same for valuable consideration to Grideon Koiner. Under these circumstances parol evidence is inadmissible to add to or to vary the written contracts entered into by the purchasers of the various parcels of land when they respectively signed the written memoranda of sale which were returned by the commissioners with their report. “If the contract of the parties be once reduced into writing/’ says Chitty, “whether it be a contract which is required by the statute of frauds to be in writing or not, verbal evidence is not allowed to be given of what passed between the parties, either before the written evidence was made or during the time that it was in a state of preparation, so as to vary or* qualify the written contract. Thus, where there is a sale by auction and the contract is reduced into writing—as by the auctioneer signing a memorandum of the sale in a book which contains or refers to the catalogue and conditions of sale—evidence of verbal declarations by the auctioneer, varying the statements contained in the catalogue or conditions, are not admissible.” 1 Chitty on Contracts (11th Amer. ed.), 153. “ Whatever may have been the previous conversations and verbal communications between the parties if they at last reduce their agreement to writing, this will he looked upon to contain all that the parties intended should form any part of their bargain, and everything said respecting the transaction in the previous conversations and not incorporated, into the written agreement will be considered as intentionally rejected,” Ibid. 154, note and cases cited.

Nor is this all. The appellant by his purchase becomes a quasi party to the suit, and having silently stood by and allowed the sale to be confirmed without objection, making no complaint until after the land purchased by the appellee had been conveyed for value to a third party, he is not entitled to the interference of a court of equity for the correction of an alleged mistake, certainly not as against such third party. The paper, or the addendum to the report, called “ the supplemental report,” is no part of the commissioner’s report, nor can it he properly treated as a part of the record at all. Consequently, when the vendee of Rice looked to the proceedings in the cause to ascertain the condition of the latter’s title, the record disclosed to him the fact that no such right -was there reserved to the appellant as that for which he now contends. On the contrary, it showed that the sale had been confirmed upon the terms adver tised by the commissioners, and recognized and acted on by the purchasers. Upon these facts thus appearing, third persons had a right to rely. They were doubtless acted, on in the present case, and the decrees complained of must be affirmed.

Richardson and Hinton, Js., concurred in the opinion of Lewis, P.