G. Thomas Miller, McNees, David E. Lehman, Wallace & Nurick, Harrisburg, for appellant.
William D. Boswell, Berman & Boswell, Harrisburg, for appellees; Mark E. Garber, Jr., Garber, Fowler & Addams, Carlisle, of counsel.
Jones, C. J., and O'Brien, Roberts, Pomeroy and Manderino, JJ. Jones, C. J., and Eagen and Nix, JJ., did not participate in the consideration or decision of this case.
This appeal arises from the trial court's refusal to decree the specific performance of a contract for the purchase of realty. We vacate and remand.
In 1945, appellant John B. Warden conveyed to appellee M. Harvey Taylor a parcel of land containing a log cabin and his interest in a farm that he had theretofore owned as a tenant in common with Taylor. Simultaneously Warden and Taylor executed a contract which granted to Warden a right of first refusal to repurchase the land in these terms:
"If the said parties of the second part [Taylor and his now-deceased wife] decide to sell and convey the same farm and premises upon which the said log cabin is erected during their respective life times, the said John B. Warden shall have the first right and privilege to purchase said farm at and for the price of Four Thousand Dollars ($4,000); and the premises upon which the log cabin aforesaid is erected, at and for the price of Five Thousand Dollars ($5,000)."
In 1971, Taylor conveyed both tracts to his grandson, appellee M. Harvey Taylor II, and his wife, appellee Suzanne C. Taylor. The deed recited a consideration of "natural love and affection." Taylor did not afford Warden an opportunity to exercise his contractual "first right and privilege to purchase" the tracts at the stated prices.
Warden then commenced this action in equity, seeking as alternative forms of relief a decree compelling specific performance, a declaration that the conveyance by Taylor is void and ineffective to impair Warden's rights, an injunction prohibiting further transfer, or the imposition of a constructive trust.
After the consideration of submitted evidence, the trial court concluded that Warden's right of first refusal was valid and enforceable and that the conveyance by Taylor violated Warden's contractual rights. The court declared M. Harvey Taylor II and Suzanne C. Taylor to be constructive trustees for the benefit of Warden and enjoined them from conveying any interest in the realty to anyone other than Taylor or Warden.*fn1 The court refused, however, to decree specific performance. Following the denial of appellant's exceptions to the adjudication, he appealed to this Court.*fn2
The only question before us for decision is whether the trial court erred in failing to decree specific performance. We take as settled the determination that appellant's right of first refusal is valid and enforceable, that Taylor's conveyance was in derogation of appellant's ...