RUNION, ET AL. v.
HELVESTINE, ET AL.
June 5, 1998
Record No. 971364
DOROTHY MARIE RUNION, ET AL.
FRANK HELVESTINE, III, ET AL.
OPINION BY CHIEF JUSTICE HARRY L. CARRICO
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Roy B. Willett, Judge
Present: All the Justices
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.  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 1.86 acres and Dorothy Helvestines 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,
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). 
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 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. Strausss 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
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 Helvestines] death is a contract
right protectable by the courts.
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.
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 Sec.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
party, and place him in a situation which does not lie in
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
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 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 Strausss 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 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 Helvestines 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 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 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 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
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
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 couples
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 promisors death. 235 Va. at
569, 369 S.E.2d at 672-73. In Everton v. Askew, supra,
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 latters 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 Strausss 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
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 Helvestines 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.
 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.
 The copy of the contract
attached to the amended bill is signed only by Eric F. Helvestine
as attorney-in-fact for Dorothy W. Helvestine.
 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.
 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.