Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice

F. TALMADGE JETT, ET AL.
                      OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 991589               April 21, 2000

PETER J. DEGAETANI

           FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY
                    Joseph E. Spruill, Jr., Judge

        In this appeal of a judgment which ordered specific

performance of an oral agreement, we consider whether the

judgment is unenforceable because the chancellor ordered the

defendants to convey an interest in real property to a person

who is not a party to this litigation.

        Plaintiff, Peter J. DeGaetani, filed a bill of complaint

seeking specific performance of an alleged oral contract.     He

claimed that the defendants, F. Talmadge Jett and Annie May

Jett, husband and wife, agreed to convey a parcel of land with

improvements to him and his former wife, Joyce Lynn Jett, who

was not a party to this litigation.

        The following relevant facts were adduced during an ore

tenus hearing.     The plaintiff and Joyce Jett were married in

1968.    F. Talmadge Jett and Annie May Jett (collectively the

Jetts) conveyed by deed of gift an unimproved parcel of land

in Northumberland County to DeGaetani and Joyce Jett

DeGaetani, then husband and wife, as tenants by the entirety.

In August 1974, DeGaetani and Joyce Jett borrowed $25,000 from
Franklin Federal Savings & Loan Association to finance the

construction of a house on the property.    The loan was secured

by a first deed of trust on the property.   In June 1975,

DeGaetani and Joyce Jett borrowed an additional sum of $10,000

from Franklin Federal Savings & Loan Association to complete

construction of the house.   This loan was secured by a second

deed of trust upon the property.    In 1976, DeGaetani and Joyce

Jett were deemed in default of the deeds of trust.

     According to DeGaetani, a conversation occurred among the

Jetts, Joyce Jett, and DeGaetani.   The Jetts agreed to pay the

amounts due under the deeds of trust, and DeGaetani and Joyce

Jett agreed to convey the property to the Jetts.   Talmadge

Jett testified that he was not present when this conversation

occurred, but he was aware of the agreement and he was willing

to honor it.   DeGaetani testified that the Jetts agreed to

convey the property to Joyce Jett and DeGaetani at a future

date for $36,300, the amount the Jetts paid to Franklin

Federal Savings & Loan Association.   DeGaetani and Joyce Jett,

by a deed recorded in February 1977, conveyed the real

property, including the house constructed thereon, to the

Jetts.

     DeGaetani and Joyce Jett divorced and DeGaetani

remarried.   DeGaetani, who lives with his wife on the




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property, testified that he was ready, willing, and able to

pay the Jetts $36,300 for the property.

     The chancellor held that DeGaetani proved with clear and

convincing evidence that he had a contract with the Jetts that

required them to convey the property to him and Joyce Jett for

$36,300.   The chancellor entered an order which required,

among other things, that DeGaetani satisfy certain conditions

and pay the Jetts $36,300 before a date certain.   DeGaetani

satisfied the conditions set forth in the order, and the Jetts

were ordered to "convey to the plaintiff, Peter J. DeGaetani,

and to Joyce Lynn Jett, as tenants in common, the property

which is the subject of this suit."

     The Jetts argue that the chancellor erred by ordering

them to execute a deed conveying the property to DeGaetani and

Joyce Jett because Joyce Jett is a necessary party to this

suit, and DeGaetani failed to make her a party to the

proceeding.   Responding, DeGaetani asserts that Joyce Jett is

not a necessary party and, therefore, he was not required to

include her as a party in this proceeding.   We disagree with

DeGaetani.

     We have held that a court cannot render a valid judgment

when necessary parties to a suit are not before the court.

Atkisson v. Wexford Associates, 254 Va. 449, 455, 493 S.E.2d

524, 527 (1997); Asch v. Friends of Mt. Vernon Yacht Club, 251


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Va. 89, 91, 465 S.E.2d 817, 818 (1996); Schultz v. Schultz,

250 Va. 121, 124, 458 S.E.2d 458, 460 (1995); Allen v.

Chapman, 242 Va. 94, 99, 406 S.E.2d 186, 188 (1991); McDougle

v. McDougle, 214 Va. 636, 637, 203 S.E.2d 131, 133 (1974).

     We have also stated the following principles which are

equally pertinent here:

          " 'Necessary parties include all persons,
     natural or artificial, however numerous, materially
     interested either legally or beneficially in the
     subject matter or event of the suit and who must be
     made parties to it, and without whose presence in
     court no proper decree can be rendered in the cause.
     This rule is inflexible, yielding only when the
     allegations of the bill state a case so
     extraordinary and exceptional in character that it
     is practically impossible to make all parties in
     interest parties to the bill, and, further, that
     others are made parties who have the same interest
     as have those not brought in, and are equally
     certain to bring forward the entire merits of the
     controversy as would the absent persons.
          'This cardinal principle governing as to
     parties to suits in equity is founded upon the broad
     and liberal doctrine that courts of equity delight
     to do complete justice by determining the rights of
     all persons interested in the subject matter of
     litigation, so that the performance of the decree
     rendered in the cause may be perfectly safe to all
     who are required to obey it and that further
     litigation touching the matter in dispute may be
     prevented.' "

Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37, 49, 124

S.E. 482, 486 (1924) (quoting The Buchanan Company v. Smith's

Heirs, 115 Va. 704, 707-08, 80 S.E. 794, 795 (1914)); accord

Atkisson, 254 Va. at 455-56, 493 S.E.2d at 527-28.




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     We have also stated that "'[necessary parties'] interests

in the subject matter of the suit, and in the relief sought,

are so bound up with that of the other parties, that their

legal presence as parties to the proceeding is an absolute

necessity, without which the court cannot proceed.   In such

cases the court refuses to entertain the suit, when these

parties cannot be subjected to its jurisdiction.'"     Bonsal v.

Camp, 111 Va. 595, 597-98, 69 S.E. 978, 979 (1911) (quoting

Barney v. Baltimore City, 73 U.S. (6 Wall.) 280, 284 (1867)).

     We hold that the chancellor lacked the power to proceed

with DeGaetani's bill of complaint because Joyce Jett was a

necessary party to that litigation.   The chancellor's order

directed the Jetts to execute and deliver a deed that conveyed

the property to DeGaetani and Joyce Jett as tenants in common.

The chancellor's order made a determination that Joyce Jett

has an interest in the real property as a tenant in common.

This order, without question, imposed certain duties and

obligations upon her because of her property interests as a

tenant in common.   Yet, she was not before the court even

though she had a material legal interest in the subject matter

of the suit.

     Contrary to DeGaetani's assertions, no exception exists

which would have permitted the chancellor to enter a valid

judgment in this suit without Joyce Jett's presence.    We held


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in McDougle that a court may adjudicate a suit when it is

practically impossible to join all parties in interest and the

absent parties are represented by others having the same

interest or when an absent party's interests are separable

from those of the parties before the court so that the court

may enter an order without prejudice to the rights of the

absent party.   214 Va. at 637, 203 S.E.2d at 133.   Here, it

was not practically impossible to join Joyce Jett as a party,

and her interests are not separable from DeGaetani's interests

to the extent that the chancellor could enter an order without

prejudice to her rights.   Indeed, the challenged final order

conferred upon her the real property rights of a tenant in

common with the related duties and obligations.

     Accordingly, we will reverse the chancellor's order, and

we will remand this proceeding to the circuit court with

instructions that it issue an order requiring that DeGaetani

convey the property to the Jetts.   The Jetts shall be required

to return the $36,300 to DeGaetani.   The remand will be

without prejudice to the rights, if any, that DeGaetani may

have to join Joyce Jett as a party to any further proceedings.

                                          Reversed and remanded.




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