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FIREBAUGH, et al.
WHITEHEAD, et al.
PRESENT: All the
Record No. 010934
CO-EXECUTOR OF THE
MARTHA F. SOWERS,
DECEASED, ET AL.
CHARLES F. WHITEHEAD, ET
OPINION BY JUSTICE
DONALD W. LEMONS
March 1, 2002
FROM THE CIRCUIT COURT
OF BOTETOURT COUNTY
Duncan M. Byrd, Jr.,
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
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.
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 the estate of Sowers,
and against BCC. 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
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.
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).
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 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 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
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
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 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.
co-executors argue that the failure to specify duration
"raises the possibility that the right of first 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
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.
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. 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.
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 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.
 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.
 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.