Firebaugh v. Whitehead

PRESENT: All the Justices

WILLIAM CALVIN FIREBAUGH,
CO-EXECUTOR OF THE ESTATE OF
MARTHA F. SOWERS, DECEASED, ET AL.

OPINION BY
v. Record No. 010934 JUSTICE DONALD W. LEMONS
March 1, 2002

CHARLES F. WHITEHEAD, ET AL.

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
Duncan M. Byrd, Jr., Judge

In this appeal, we consider whether Charles F. and Martha

A. Whitehead (collectively, “the Whiteheads”) possess a valid

and enforceable right of first refusal to purchase property

owned by the estate of Martha F. Sowers (“Sowers”). We further

consider whether the right, if valid and enforceable, is binding

upon the co-executors of Sowers’ estate, William C. Firebaugh

(“Firebaugh”) and Evelyn O. Carlson (“Carlson”) (collectively,

“co-executors”).

I. Facts and Proceedings Below

On July 22, 1987, Sowers conveyed approximately 13.77 acres

of land by deed to the Whiteheads. On August 7, 1987, Sowers

executed an agreement granting to the Whiteheads a right of

first refusal to purchase additional acres, which was

subsequently recorded in the Botetourt County Clerk’s Office in

Deed Book 336, Page 539. The agreement, in pertinent part,

granted the Whiteheads:
 [A] first right of refusal to purchase certain
parcels currently owned by [Sowers] lying on the
northerly side of State Route 665 and designated
as Tax Parcel #72-83 and Tax Parcel #72-53 and
shown on that certain plat prepared by Charles R.
McMurry, C.L.S. dated March 29, 1987, a copy of
which is recorded in the Clerk’s Office of the
Circuit Court of Botetourt County, Virginia in
Deed Book 336, Page 533. 1

Sometime in the latter part of 1987 the Whiteheads moved from

Virginia to Mississippi and did not notify Sowers that they were

leaving the area.

Sowers died in 1993 and Firebaugh and Carlson qualified as

co-executors of her estate. On April 22, 1993, the estate

received an offer from the Botetourt Country Club, Inc. (“BCC”)

to purchase approximately 16.9 acres of property, including the

property subject to the Whiteheads’ right of first refusal, for

$94,950.00. Firebaugh and Carlson conveyed the property by deed

to BCC on May 21, 1993. The Whiteheads first learned of the

sale to BCC in March 1994, when Claude Carter, BCC’s attorney,

called Mrs. Whitehead and notified her.

On November 20, 1995, the Whiteheads filed an amended bill

of complaint against Firebaugh and Carlson, as co-executors of

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The recorded grant memorialized a prior unrecorded
contract between the parties. The contract, dated May 21, 1987,
granted the right of first refusal to two parcels “designated as
Tax Parcel #72-93 and Tax Parcel #72-53 . . . .” The trial
court dismissed with prejudice the part of the Whiteheads’ suit
referring to the property designated as Tax Parcel 72-83 in the
deed.

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the estate of Sowers, and against BCC. 2 The Whiteheads alleged

that by failing to offer them the property subject to their

right of first refusal, the estate breached the agreement. The

Whiteheads requested specific performance, asking the trial

court to order BCC to convey the property to the Whiteheads.

Alternatively, the Whiteheads requested monetary damages from

the co-executors. In their answer, the co-executors claimed

that the agreement including the right of first refusal was

executed by Sowers individually, and could not be enforced

against the co-executors of Sowers’ estate.

The trial court heard evidence and argument on July 1 and

2, 1997. A large portion of the evidence and argument related

to whether the description of the land in the right of first

refusal was sufficient to render the right enforceable. At

trial, Kirk Lumsden (“Lumsden”) was qualified as an expert in

land surveying. Lumsden testified that he was able to identify

the property subject to the right of first refusal by examining

the agreement containing the right, along with other documents

referenced in the agreement, including the plat prepared by

Charles McMurray. Lumsden explained that he “did some

additional deed research for the properties that adjoin the tax

2
The Whiteheads filed a bill of complaint against Firebaugh
and Carlson as co-executors, and BCC, on August 3, 1994. The
procedural history leading up to the filing of the amended bill
of complaint is not relevant to this appeal.

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parcels referenced [in the agreement], and used that to help

identify the property.” Lumsden testified in detail about the

steps he took in order to identify the property subject to the

right of first refusal. Lumsden was asked on cross-examination

whether he could identify the property by looking at the

agreement purporting to grant the right. Lumsden answered:

“Not from the agreement, per se, but by pulling out the plat and

taking information from the plat,” he could identify the

property.

In an opinion letter dated July 30, 1997, incorporated in

an order entered November 5, 1997, the trial court ruled that

the Whiteheads’ right of first refusal was valid and

enforceable. In the order of November 5, 1997, the trial court

denied the Whiteheads’ request for specific performance from BCC

but permitted the Whiteheads to maintain their claim against the

co-executors for damages.

On February 7, 2001, the trial court entered final judgment

against the co-executors, jointly and severally in their

capacity as co-executors, in the amount of $64,000, plus

prejudgment interest from November 5, 1997, and postjudgment

interest until the award was fully paid. Both the Whiteheads

and the co-executors appealed the final order and we denied an

appeal to the Whiteheads, but awarded an appeal to the co-

executors.

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 The co-executors claim that the trial court erred in

holding that the right of first refusal held by the Whiteheads

was valid and enforceable, and that the trial court erred in

holding that the agreement between Sowers and the Whiteheads was

binding upon the co-executors.

II. Standard of Review

The issues in this appeal present questions of law;

therefore, we review them under a de novo standard.

Transcontinental Ins. Co. v. RBMW, Inc., 262 Va. 502, 514, 551

S.E.2d 313, 319 (2001).

III. Analysis

The co-executors assert that “the description of the land

contained in the agreement [is] so vague and ambiguous as to

make it nearly impossible to identify the land subject to the

right of first refusal.” They further claim that the agreement

lacks essential terms which render it invalid, specifically,

provisions concerning notification of potential offers to the

Whiteheads and details concerning the proper method of response

of the holder of a first right of refusal. Additionally, the

co-executors argue that the agreement lacks a specified time

period during which the right would remain valid, which they

claim renders the agreement void as violating the rule against

perpetuities and as an unlawful restraint against alienation.

Finally, they maintain that even if the right of first refusal

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is valid and enforceable, it is not binding upon them because

the agreement was personal to Sowers.

The Whiteheads assert that the description of the property

subject to the right of first refusal is sufficient because the

property can be located with the aid of extrinsic evidence.

They further argue that a right of first refusal need not

include information about notification, provisions about how and

when the holder must exercise the right, or a duration

limitation of the right. Finally, the Whiteheads claim that

Sowers’ death did not terminate her contractual obligations;

therefore, the co-executors are bound by the Whiteheads’ right

of first refusal. We agree with the Whiteheads.

In a deed conveying land or an interest in land, the main

object of the description “is not in and of itself to identify

the land sold . . . but to furnish the means of identification,

and when this is done it is sufficient.” Harper v. Wallerstein,

122 Va. 274, 278, 94 S.E. 781, 782 (1918) (citing Thorn v.

Phares, 35 W. Va. 771, 782, 14 S.E. 399, 405 (1891)). The

description of the subject property must be sufficient “to

afford the means, with the aid of extrinsic evidence, of

ascertaining with accuracy what is conveyed and where it is.”

Smith v. Bailey, 141 Va. 757, 768, 127 S.E. 89, 93 (1925)

(citing Merritt v. Bunting, 107 Va. 174, 179, 57 S.E. 567, 568

(1907)). “The description need not be given with such

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particularity as to make a resort to extrinsic evidence

[unnecessary].” Pavlock v. Gallop, 207 Va. 989, 993, 154 S.E.2d

153, 156 (1967) (citing Grayson Lumber Co. v. Young, 118 Va.

122, 126, 86 S.E. 826, 827 (1915)).

In the present case, an expert in land surveying testified

that the description in the agreement was sufficient to allow

him to identify the subject property. He explained that he

identified the property by looking at the agreement along with

extrinsic evidence including land records and the plat

referenced in the agreement. Accordingly, the description in

the agreement satisfies the legal requirements for conveying or

transferring an interest in land.

The co-executors also argue that the Whiteheads’ right of

first refusal lacks essential terms, including provisions about

notification to the Whiteheads and details about how the

Whiteheads were to respond. This Court addressed issues similar

to these in Landa v. Century 21 Simmons & Co., 237 Va. 374, 377

S.E.2d 416 (1989).

In Landa, the contract at issue stated: “Purchaser to have

first option on remaining tract. Notice must be in writing to

3018 Boulevard, Col. Hgts.” Id. at 378, 377 S.E.2d at 418.

Although called a “first option,” we held that the right

expressed was a right of first refusal. The trial court found

the contractual provisions “incomplete and uncertain” because

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they failed to define “the remaining tract,” failed to specify

the right’s duration and whether the right survived settlement,

and failed to set a price. Id. at 380, 377 S.E.2d at 419. In

reversing the judgment of the trial court, we observed that a

right of first refusal is included in a contract for the benefit

of the person who is given the right and, therefore, must “be

interpreted with that purpose in mind.” Id. A right of first

refusal limits a property owner’s right “to dispose freely of

his property by compelling him to offer it first to the party

who has the first right to buy.” Id. at 381, 377 S.E.2d at 420

(quoting 11 Samuel Williston, Williston on Contracts § 1441A (3d

ed. 1968)); see also Cities Service Oil Co. v. Estes, 208 Va.

44, 47, 155 S.E.2d 59, 62 (1967). The nature of the right makes

it unnecessary for the terms of a future offer to be known in

advance. Landa, 237 Va. at 381, 377 S.E.2d at 420. Therefore,

we held that the trial court erred in ruling that the right of

first refusal was uncertain and indefinite because “the terms of

the contract to be specifically enforced are determined from the

offer whose terms the holder of the right of refusal agrees to

meet.” Id. at 383, 377 S.E.2d at 421. In this case, the

deficiencies alleged by the co-executors are not fatal to the

validity of the right of first refusal.

Additionally, the co-executors argue that the failure to

specify duration “raises the possibility that the right of first

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refusal is void as an unlawful restraint against alienation and

violative of the Rule Against Perpetuities.” In Landa we

rejected the argument that failure to specify a duration for a

right of first refusal invalidated the right. 237 Va. at 380,

377 S.E.2d at 419.

We have recognized that rights of first refusal are subject

to the rule against perpetuities; therefore, a right is void ab

initio if, at its creation, there is a possibility the right

might not be exercised until after the expiration of the time

period fixed by the rule, which is measured by a life or lives

in being plus 21 years and 10 months. Lake of the Woods Ass’n,

Inc. v. McHugh, 238 Va. 1, 4-5, 13, 380 S.E.2d 872, 873, 874-75

(1989); United Virginia Bank v. Union Oil, 214 Va. 48, 51, 197

S.E.2d 174, 177 (1973). The right of first refusal in the case

before us was specifically granted to “Charles Whitehead and

Martha A. Whitehead, or the survivor.” The relevant lives in

being at the time of the grant were Sowers and the Whiteheads,

and the right vested at the time of the execution of the

agreement.

Finally, the co-executors argue that the right of first

refusal is invalid because there are no specific provisions for

notice to the holders of the right and no specific requirements

for a time to respond to the notice. The co-executors cite no

cases in support of their argument and we can find none.

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Additionally, when a contract does not provide a time within

which a party must act, the law will imply a reasonable time

within which to do so. Merriman v. Cover, Drayton & Leonard,

104 Va. 428, 442, 51 S.E. 817, 821 (1905).

We hold that the Whiteheads’ right of first refusal

includes a sufficient description of the property and does not

lack any essential terms. Furthermore, the lack of a duration

limitation does not violate the rule against perpetuities or

create an unlawful restraint against alienation. Accordingly,

the Whiteheads’ right of first refusal is valid and enforceable.

We must now decide whether the right is binding upon the

co-executors of Sowers’ estate. In Looney v. Belcher, 169 Va.

160, 170-71, 192 S.E. 891, 895 (1937) we recognized:

It is a presumption of law that the parties to a
contract bind not only themselves but their
personal representatives. Executors, therefore,
are held to be liable on all contracts of the
testator which are broken in his lifetime, and,
with the exception of contracts in which personal
skill or taste is required, on all contracts
broken after his death.

(Quoting United States v. Chain, 300 U.S. 31, 35 (1937)).

We examine the facts and circumstances of each particular

case to determine whether a contract is purely personal in

nature. Moore v. Crutchfield, 136 Va. 20, 25, 116 S.E. 482, 483

(1923). Contracts requiring artistic or mechanical skill,

ability, or training are generally considered personal

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contracts, where the death of the promisor results in discharge

of the obligation. 14 Corbin on Contracts § 75.2 at 127 (James

P. Nehf, ed. 2001).

In the present case, Sowers granted the Whiteheads an

interest in land. A contract granting an interest in land does

not involve any special skills or training; thus, it does not

have the characteristics of a personal contract and the death of

the promisor does not discharge the obligation. Therefore,

Sowers’ estate is bound by the contract which granted the

Whiteheads their valid and enforceable right of first refusal.

Accordingly, we will affirm the judgment of the trial

court.

Affirmed.

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