Waddy v. Riggleman

606 S.E.2d 222 (2004)

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Nature of the Case

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Facts

P entered into a contract to buy a thirty-acre tract of land from D. P was to pay $750 per acre for the tract of land, for a total purchase price of $22,500. The closing was to be held on or before September 5, 2002. D agree to convey the subject real estate in fee simple, with covenants of general warranty of title, free and clear of all liens and encumbrances. P paid D $2,000 when the contract was signed. P retained an attorney to close the transaction and to represent D as well in particular to take the necessary steps to obtain releases of two deeds of trust under which the land was encumbered. The attorney, Ours, believed he could easily obtain releases or partial releases to clear title to the thirty-acre tract of land. D then solicited P to sell an additional ten acres of land. P agreed, and they entered a second agreement. The total purchase price of the tract was increased to $30,000, and P had to pay D a total of $4,000 toward the total costs of the transaction. The parties entered a third agreement. This agreement added an additional eight acres to the size of the tract of land being sold and extended the closing date to be held on or before September 20, 2002. D requested that the closing be held on September 16, 2002. P explained that funds were not available until September 17, 2002. D then learned that the releases had not yet been obtained. After the contractually set closing date had passed, D notified the attorney by letter that he would not proceed with the sale. The attorney advised everyone that he could no longer represent any of them. P sued for specific performance for the sale of the forty-eight acres. D then conveyed a tract of real estate containing ninety-six acres to C. Fred Ours and Carol A. Ours. This conveyance purported to sever or eliminate, by failure to reserve, a right of way to the forty-eight acres that is the subject of this dispute. D filed an amended complaint naming the Ours as party defendants. The court granted D a directed verdict because the transfer of the real estate was an impossibility; it reasoned that obtaining releases of the deeds of trust on the property by the time of closing was necessary in order to transfer clear title as contemplated by both parties. P appealed.