Runion v. Helvestine

Present: All the Justices

DOROTHY MARIE RUNION, ET AL.
OPINION BY
v. Record No. 971364 CHIEF JUSTICE HARRY L. CARRICO
June 5, 1998
FRANK HELVESTINE, III, ET AL.

FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Roy B. Willett, Judge

In an amended bill of complaint, the plaintiffs, Dorothy Marie

Runion and her husband, David L. Runion, sought to enjoin the

alienation of Lots A and B, as shown on a certain plat, in which

the plaintiffs claimed an interest under an oral contract whereby

Dorothy W. Helvestine agreed to make a will devising the plaintiffs

Lot A and an option to purchase Lot B. 1 The chancellor dismissed

the amended bill on demurrer, and we awarded the plaintiffs this

appeal. Finding that the chancellor erred, we will reverse.

In addition to Dorothy Helvestine, the amended bill named as

defendants her attorneys-in-fact, Frank Helvestine, III, and Eric

Frank Helvestine, who are her son and grandson. Dorothy Runion is

the granddaughter of Dorothy Helvestine, the daughter of Frank

Helvestine, III, and the sister of Eric Helvestine.

Upon the death of her husband, Frank Helvestine, Jr., in 1986,

Dorothy Helvestine became the owner of a tract of land containing

approximately 25 acres which includes Lots A and B. Lot A contains

1
Dorothy W. Helvestine was still living at the time of the
proceedings below, so a bill seeking specific performance of the
alleged agreement to make a will would have been inappropriate.
1.86 acres and Dorothy Helvestine’s residence, located at 5931

Cotton Hill Road, S.W., in Roanoke County. Lot B contains 2.446

acres and a frame house adjoining Lot A.

The amended bill alleged that Dorothy Helvestine “is currently

not competent” and requested that a guardian ad litem be appointed

to represent her. Jeffrey L. Dorsey, Esquire, was appointed to

perform this function.

The amended bill also alleged as follows:

After the death of Frank Helvestine, Jr., but before the
incompetency of Dorothy W. Helvestine, [she] came to the
Plaintiffs and requested them to move in with her at the
above stated address in order to take care of her. In
March, 1986, the Plaintiffs moved in with Dorothy W.
Helvestine. At that time, they entered into an oral
contract to make a will whereby if the Plaintiffs
provided the day-to-day care for Dorothy W. Helvestine as
long as possible, she would will to them the house and
lot at the address above-stated. The Plaintiffs
specifically relied upon these representations. Further,
Defendant, Dorothy W. Helvestine, also stated that in
addition to devising them the house and lot aforesaid,
she would further devise to them an option to purchase a
second tract of land. In furtherance of this oral
contract to make a will, Dorothy W. Helvestine directed a
survey to be made in April, 1991, a copy of which is
attached hereto as Exhibit 2. Lot A represents the
property that Dorothy W. Helvestine contracted to be
devised by will to the Plaintiffs. Lot B is the property
that was agreed the Plaintiffs could purchase upon the
death of Dorothy W. Helvestine from her estate for the
sum of $35,000.00. This $35,000.00 purchase price was
agreed to in 1991 and the Plaintiffs were given first
refusal as to this property upon which representations
the Plaintiffs relied.

The amended bill alleged further that the plaintiffs

“performed under the contract from March, 1986, to October,

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1993, when Dorothy W. Helvestine became so frail and infirm

because of advanced age that her care required her to be

transferred to the South Roanoke Nursing Home.” In addition,

the amended bill alleged that “[d]espite the performance on

behalf of the Plaintiffs done in reliance on the oral contract

to make a will with Dorothy W. Helvestine, the Defendants,

Frank Helvestine, III and Eric Helvestine, are denying that

any such arrangement ever existed and . . . are taking any and

all steps necessary to defeat the oral contract and work a

fraud upon the Plaintiffs.” Finally, the amended bill alleged

that Frank Helvestine, III, had entered into a contract for

the sale of Lot B, as shown on Exhibit 2, to Strauss

Construction Corporation (hereinafter, Strauss). 2

The amended bill prayed that the plaintiffs “be granted a

permanent injunction preventing the Defendants, Frank

Helvestine, III, and Eric Helvestine, from alienating Lots A

and B [and] that Frank Helvestine, III, and Eric Helvestine be

removed as attorneys-in-fact for Dorothy Helvestine.” The

bill also prayed that the contract for the sale of Lot B to

Strauss “be rescinded as inequitable.”

Strauss was permitted to intervene, and it filed a

demurrer. Frank Helvestine, III, and Eric Helvestine filed a

2
The copy of the contract attached to the amended bill is signed
only by Eric F. Helvestine as attorney-in-fact for Dorothy W.

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joint demurrer. Both demurrers asserted that the amended bill

failed to state a cause of action because the terms of the

oral contract to make a will devising the plaintiffs an option

to purchase Lot B were not clear, certain, and definite.

Strauss’s demurrer also asserted that the allegations relating

to a right of first refusal were not clear, certain, and

definite. (Strauss, Frank Helvestine, III, and Eric

Helvestine will be referred to hereinafter as the defendants.)

By order, the chancellor severed all matters relating to

Lot B from all other matters in the proceeding and directed

the Clerk to establish a new file with respect to that lot.

Thereafter, the chancellor sustained the demurrers as they

related to Lot B, holding that the plaintiffs had “no

enforceable property interest” in the lot. The chancellor

also held that there was “no basis” for the plaintiffs to

rescind the contract for the sale of Lot B to Strauss because

the plaintiffs “have an adequate remedy at law for any damages

they may sustain.” 3

The plaintiffs have assigned two errors:

1. The trial court erred in not ruling the [plaintiffs’]
option to purchase Lot B for $35,000 upon [Dorothy
Helvestine’s] death is a contract right protectable by
the courts.

Helvestine.
3
The chancellor also denied the plaintiffs leave to amend their
pleadings with respect to Lot B, but that action is not assigned as
error by the plaintiffs.

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 2. The trial court erred in ruling [the plaintiffs] have
an adequate remedy at law for damages and that injunctive
relief and rescission of the Strauss real estate sales
contract is not available to protect their option to
purchase the land.[ 4 ]

Option to Purchase

The Statute of Frauds provides that “[u]nless a . . .

contract . . . is in writing and signed by the party to be

charged or his agent, no action shall be brought . . . [u]pon

any contract for the sale of real estate . . . .” Code § 11-

2(6). The defendants agree, however, that an oral contract

relating to land, including an oral contract to make a will

and an oral option to purchase, is enforceable when there has

been partial performance and certain legal requirements are

met.

Those requirements are well-established. In Wright v.

Pucket, 63 Va. (22 Gratt.) 370 (1872), this Court stated:

[T]he principles upon which courts of equity have avoided
the statute of frauds, upon the ground of part
performance of a parol agreement, are now as well settled
as any of the acknowledged doctrines of equity
jurisprudence. From the numerous decisions on the
subject the following principles may be extracted and
briefly stated as follows: 1st. The parol agreement
relied on must be certain and definite in its terms. 2d.
The acts proved in part performance must refer to, result
from, or be made in pursuance of the agreement proved.
3d. The agreement must have been so far executed that a
refusal of full execution would operate a fraud upon the

4
Since the plaintiffs do not assign error relating to their claim
that they were entitled to a right of first refusal with respect to
Lot B, we will not consider that claim.

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 party, and place him in a situation which does not lie in
compensation.

Id. at 374; see also Story v. Hargrave, 235 Va. 563, 570, 369

S.E.2d 669, 673 (1988); Woodbridge v. Outland, 212 Va. 157,

160-61, 183 S.E.2d 162, 164-65 (1971); Patton v. Patton, 201

Va. 705, 714-15, 112 S.E.2d 849, 856 (1960); Hill v. Luck, 201

Va. 586, 589-90, 112 S.E.2d 858, 860 (1960); Everton v. Askew,

199 Va. 778, 781-82, 102 S.E.2d 156, 158 (1958); Wright v.

Dudley, 189 Va. 448, 455, 53 S.E.2d 29, 32 (1949); Mann v.

Mann, 159 Va. 240, 245, 165 S.E. 522, 524 (1932).

Here, the arguments of the defendants focus upon the

first two of the Wright v. Pucket requirements, viz., that the

oral agreement relied on must be definite in its terms and

that the acts proved in part performance must refer to, result

from, or be made in pursuance of the agreement proved. The

defendants maintain that the plaintiffs’ oral agreement

relating to the devise of an option to purchase fails to

satisfy either requirement.

Strauss argues that “[t]o be enforceable, the terms of an

oral contract involving the conveyance of land must be clear,

definite, and certain at the time the alleged agreement [is]

entered into.” Here, Strauss says, when the agreement to

devise an option was purportedly made in 1986 it was not

definite in its terms because the land to be optioned had not

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yet been clearly defined and the purchase price had not been

determined. Strauss points out that the purchase price and

the description of the property were not ascertained until

1991, five years after the agreement was entered into, and it

argues that what occurred in 1991 “does not make a legally

unenforceable ‘agreement’ entered into in 1986 an enforceable

contract in 1991.”

Frank and Eric Helvestine adopt Strauss’s argument but

also argue that if the option to purchase Lot B was not

granted until 1991 when the description and price of the lot

were ascertained, the plaintiffs “have a problem” because they

had already moved in with Dorothy Helvestine and were caring

for her in reliance upon her 1986 promise to devise Lot A.

Therefore, their moving in could not have been in reliance

upon a promise made in 1991 with respect to Lot B. Hence,

Frank and Eric Helvestine conclude, “[p]art performance and

reliance were already in place . . . because of the 1986

‘agreement’ as to Lot A” and “the 1991 option was without any

consideration.”

We disagree with the defendants. This case was decided

on demurrer. “A demurrer admits the truth of all material

facts properly pleaded. Under this rule, the facts admitted

are those expressly alleged, those which fairly can be viewed

as impliedly alleged, and those which may be fairly and justly

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inferred from the facts alleged.” Rosillo v. Winters, 235 Va.

268, 270, 367 S.E.2d 717, 717 (1988); see also W. S. Carnes,

Inc. v. Chesterfield County, 252 Va. 377, 384, 478 S.E.2d 295,

300 (1996).

We are of opinion that when the allegations of the

amended bill are fairly read they state a case for an

agreement requiring Dorothy Helvestine to do two things in

consideration of the plaintiffs’ moving in with her and

providing her day-to-day care as long as possible, (1) make an

outright devise to them of the house and lot located at 5931

Cotton Hill Road, S.W., and (2) devise them an option to

purchase a second tract of land. While the terms of the

option were not then certain and definite because the land and

the price to be paid therefor were not specified, the terms

were made certain and definite in 1991 when Lot B was created

at Dorothy Helvestine’s direction and the parties agreed upon

a purchase price of $35,000.

Strauss has not cited, nor have we found, any authority

for its contention that, for an oral contract to be

enforceable, its terms “must be clear, definite, and certain

at the time the alleged agreement [is] entered into” and that

nothing occurring later can “make a legally unenforceable

‘agreement’ . . . an enforceable contract.” We think

subsequent occurrences can make enforceable an otherwise

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unenforceable contract, provided the rights of innocent

parties without notice have not intervened.

It has yet to be determined whether Strauss occupies the

position of an innocent purchaser without notice. Whether

Strauss had notice of the plaintiffs’ alleged option rights is

a matter of defense that was not settled with the sustaining

of the defendants’ demurrers and remains a question subject to

proof in the event of a trial on the merits.

With respect to the argument of Frank and Eric Helvestine

that there was no consideration for what they call “the 1991

option,” we hold that no additional consideration was

necessary. What was done in 1991 merely filled in the details

of the 1986 agreement and became part and parcel of the bundle

of rights the plaintiffs acquired at the outset in

consideration of their moving in with Dorothy Helvestine and

providing her day-to-day care as long as possible. That

bundle consisted of a promise to devise what became Lot A and

a promise to devise an option to purchase what became Lot B,

and the plaintiffs’ acts of part performance resulted from or

were made in pursuance of both those promises.

Even so, the defendants submit, there are no allegations

in the amended bill as to time of performance, conditions of

exercise, or payment arrangements. However, because the

alleged agreement involved the making of a will, the time of

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performance is implied from the event that would make the will

effective, i.e., the death of Dorothy Helvestine.

The defendants do not suggest what conditions of exercise

are lacking from the allegations or whether such conditions

would relate to the formation of the contract or merely to

matters of performance, the latter being non-essential

allegations. Townsend v. Stick, 158 F.2d 142, 145 (4th Cir.

1946).

And the defendants are correct in saying that the alleged

agreement provides for a purchase price of $35,000 without

specifying the terms of payment. But, in such circumstances,

the law implies that the purchase price will be paid in cash.

See Lacey v. Cardwell, 216 Va. 212, 221, 217 S.E.2d 835, 842

(1975) (authority of agent to offer property privately without

specification of terms of payment implies cash sale); see also

A.B.C. Auto Parts, Inc. v. Moran, 268 N.E.2d 844, 847 (Mass.

1971) (contract for sale of land silent on payment terms

implies agreement to pay cash); Kidd v. Early, 222 S.E.2d 392,

404 (N.C. 1976) (option to purchase real estate not specifying

method of payment implies price will be paid in cash).

Adequate Remedy at Law

As noted previously, the chancellor held that the

plaintiffs were not entitled to rescission of the contract for

the sale of Lot B to Strauss because the plaintiffs have an

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adequate remedy at law for any damages they may sustain. The

plaintiffs argue that when a right to acquire an interest in

land is involved, money damages are inadequate because there

is no substitute for the land itself, and equity will enforce

the right in an appropriate proceeding.

The defendants argue, on the other hand, that the

plaintiffs do have an adequate remedy at law, although they

differ in the measure of damages the plaintiffs may recover.

Strauss suggests that the measure is “the reasonable value of

the services [the plaintiffs] purportedly provided Dorothy

Helvestine” while Frank and Eric Helvestine suggest that the

measure is “the difference between the fair market value of

Lot B in its present condition, and the $35,000 ‘option’

price.”

We agree with the plaintiffs that if they establish an

interest in Lot B, an award of damages would not provide an

adequate remedy. In Story v. Hargrave, supra, we reversed an

award of $1,000 per month as compensation to a couple who

cared for an elderly woman in return for her promise to leave

her property to them in her will. We held that the couple’s

claim was not compensable in damages and that they were

entitled to the benefit of their contract in the form of the

transfer of the property to them at the promisor’s death. 235

Va. at 569, 369 S.E.2d at 672-73. In Everton v. Askew, supra,

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this Court affirmed the enforcement of an oral agreement made

by a husband and wife whereby she was to devise to him all

real estate he had conveyed to her; instead, she left the

property to her sister. We said, “[t]here is no way [the

husband] can be put in statu quo except by enforcing the

agreement.” 199 Va. at 784, 102 S.E.2d at 160. And in Wright

v. Dudley, supra, we held that an oral agreement by an elderly

woman to make a will devising her real estate to a caretaker

in return for the latter’s maintenance and support should be

specifically enforced. 189 Va. at 458, 53 S.E.2d at 34. We

stated: “Contracts of this kind are taken out of the

operation of the statute of frauds and enforced in equity

because the remedy at law is not adequate . . . .” Id. at

455, 53 S.E.2d at 32.

It does not follow, however, that the plaintiffs are

entitled to rescission of the contract for the sale of Lot B

to Strauss. They are not parties to that contract; they

allege no misconduct on Strauss’s part in inducing the

contract; the only basis they allege for rescission is that

the contract is inequitable — they assert none of the usual

grounds for rescission, i.e., fraud, mistake, illegality,

disability, concealment, undue influence. See Ferry v.

Clarke, 77 Va. 397, 409 (1883).

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 This does not mean that the plaintiffs are without a

remedy. The amended bill contains an explicit prayer for a

permanent injunction preventing Frank Helvestine, III, and

Eric Helvestine, Dorothy Helvestine’s attorneys-in-fact, from

alienating Lot B. If the plaintiffs prove the allegations of

the amended bill and it is determined that Strauss had notice

of the plaintiffs’ claim to Lot B, the chancellor will have

injunctive relief at his disposal to protect the plaintiffs’

rights in that lot.

For the reasons assigned, the judgment of the chancellor

will be reversed, the plaintiffs’ amended bill reinstated, and

the cause remanded for a trial on the merits consistent with

the views expressed in this opinion.

Reversed and remanded.

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