Dinkins v. Simons

81 S.E. 638, 97 S.C. 261, 1914 S.C. LEXIS 174

• Court: Supreme Court of South Carolina
• Decided: April 28, 1914
• Docket: 8832
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

This is an action in which the plaintiff seeks the aid of the Court, in the enforcement of an option to purchase a tract of land, under the following agreement:

“State of South Carolina, Richland County.

“This agreement, made this 7th day of February, A. D. 1903, by R. 'J. Palmer, of the first part, and Ainsley PI. Din-kins, of the second part, both of the county and State aforesaid, witnesseth:

“That the part}'' of the first part does hereby lease, demise and to farrn^ let, to the party of the second part, that tract of land, * * * being the land this day sold and conveyed to R. J. Palmer, by the said Ainsley H. Dinkins. This lease to' continue from year to year for the term of ten years' from this date, provided the rental hereinafter stipulated for is paid regularly, as herein stipulated; but failure to- pay any installment of rent when due shall, at the option of the party of the first part, terminate, immediately on the exercise of such option, this said lease.

“The party of the second part hereby stipulates and covenants and agrees, to and with the party of the first part, his heirs, executors, administrators and assigns, to pay to the party of the first part, as rental for said lands above mentioned, the. annual sum of one hundred dollars, said rental to be paid on or before December 1st, next, and on or before December 1st of each succeeding year, during the continuance of this lease.

“The party of the first part further covenants to and with the party of the second part to sell and convey to said party of second part the above mentioned and described tract of land at the price of twelve hundred ($1,200.00) dollars, upon payment to- said party of first part of said purchase price, at any time during the continuance in force of this lease; and it is further stipulated by and between the parties hereto that the said Ainsley H. Dinkins, if he chooses to exercise the option to purchase said lands, may make payment to the said R. J. Palmer, from time to time, on his said contract in such sums as he sees fit; and that all payments made by said Dinkins in excess of the yearly rental above stipulated shall be credited on the purchase price above named, but that the yearly rental shall continue as above stipulated, until the purchase money is paid in full and conveyance made for said land, under the terms of foregoing contract.

“In testimony whereof the parties of the first part and' second part have hereunto set their hands and seals, to- duplicate copies of this contract, the day and year first above written. R. J. Páumer. (Seal.)

“A. H. Dinkins. (Seal.)

“(In third line from bottom of first page ‘twelve’ inserted in lieu of ‘eleven’ and figures ‘($1,200.00)’ inserted before signing.)

“Signed, sealed, and delivered in presence of W. H. Collins, D. W. Robinson.”

The complaint alleges : That in pursuance of said agreement, Ainsley H. Dinkins went into possession of said land and there remained until his death, on the 21st of April, 1911, leaving of force a last will and testament, wherein he appointed the plaintiff as his executor. That the testator devised and bequeathed all his property, including his rights under the said agreement, to- his five children, parties defendant to this action, two- of whom are adults, and three are infants of the respective ages of 13, 14, and 17 years. That the plaintiff is informed and believes that Ainsley H. Dinkins did, from time 'to time, pay the annual rental, provided for in said agreement. That W. J. Simons was appointed -the committee' of Robert J. Palmer, who- was adjudged a lunatic by the probate Court, on the 4th of February, 1908. The prayer of the complaint was “that the amount due upon the contract of purchase aforesaid be ascertained and determined, and, upon the payment of the same to W. J. Simons, as committee of Robert J. Palmer, that a deed of the said tract of land be executed to the children of Ainsley H. Dinkins, defendants herein. * * *”

The defendants did not set up* any matter by way of defense, but merely denied that the plaintiff or his testator had complied with the requirements of the agreement, in regard to the exercise of the option to purchase the land.

There were twO' decrees. In the first decree his Honor, the Circuit Judge, said: “I think it manifest that the deed from Dinkins to Palmer constituted Palmer a mortgagee of the land. Under the contract, Dinkins has until the 7th of February, 1913, to- redeem. * * * I conclude, therefore, that the land in issue must be sold; that out of the proceeds of sale the estate of Palmer must be paid, the balance due to it on rent, after it has been charged with the amount so found to1 have been paid, and the estate of Palmer must be paid the principal sum of $1,300 admitted by plaintiff to be due; and, if there be any balance, it shall be divided betwixt the heirs at law of Dinkins, or to1 the executor of his will, to be paid out according- to law. I think the costs ought to be shared equally by the plaintiff and the estate of Palmer; one side is in no more fault than the other.” The Circuit Judge filed another decree, in which he found that the balance due for rent on the 1st of December, 1913, was $583.35, which, together with the $1,300, aggregated $1,783.35.

1, 2 There is a preliminary question to be determined before the merits are considered. Upon the hearing of this case in the Supreme Court, a motion was made to dismiss the appeal, on the ground that the notice of intention to appeal was not served within ten days, after notice of the filing of the final decree was served on defendant’s attorneys. The first of the decrees was filed on the 28th of January, 1913, and the other on the 25th of March, 1913. The notice of intention to- appeal was served on the 28th of March, 1913. At the conclusion of the first decree are these words: “A formal decree may be prepared and submitted to me to sign, and I retain jurisdiction of the case to that end.” The second decree commences with the following words: “This cause was heard by me at the November term of the Court of Common Pleas for Richland county. On January 27, 1913, I handed down a decree, in which I determined, the rights of the parties, and stated the principles upon which those rights should be settled. I then gave leave for a formal decree to be prepared and submitted to me to sign, and I retained jurisdiction of the case to that end.” Both decrees were rendered by his Honor, George W. Gage, at that time a Circuit Judge, but now an Associate Justice of the Supreme Court. It thus conclusively appears that the first decree was not intended to- be final; that the Circuit Judge so adjudged; and there was no- appeal from his decree in this respect. The motion to dismiss the appeal is therefore refused.

It seems that Ainsley H. Dinkins bought the land in question froth W. G. Childs on the 15th of January, 1896, but' was not able to pay the purchase money, which amounted to $1,100, at the time of the transaction between him and Robert J. Palmer.

Frederick Dinkins, one of the defendants, testified as follows : “Mr. Thomas: Did your father owe Mr. Childs any money on it? Witness: Yes, sir. Q. How much? A. $1,100. Q. Who did your father get to take up Mr. Childs’ debt? A. He got Mr. Palmer. Mr. Clark: I object to any testimony bearing on any transaction or communication between the witness’ father and R. J. Palmer, on- the grounds stated above. (Testimony taken subject h> objection.) Mr. Thomas : Got Mr. Palmer to do what, pay who? Witness: Pay Mr. Childs. Q. Did he give Mr. Palmer a deed? A. Yes, sir. Q. Your father? A. Yes, sir. Mr. Clark: I object to that; the deed speaks for itself. Mr.' Thomas: The deed is offered in evidence. Mr. Thomas: Did your father and his children, his family rather — did your father and his family remain in- possession of the land after your father gave Palmer the deed? Witness: Yes, sir. Q. Had you lived there before that time? A. Yes, sir; we lived there when Mr. Childs — • Q. First sold it to your father? A. Yes, sir. Mr. Clark: I object to that testimony; same grounds. Mr. Thomas: And your father was living there when he died ? A. Yes, sir.

The appellant’s attorneys interposed two objections to' this testimony. The first ground of objection was that it was inadmissible under section 438 of the Code. It did not relate to a transaction between the witness and a person then deceased, and furthermore was not in his favor, but was against the interest of the witness. See cases cited in the notes to section 438 of the Code, on page 166, to which may be added the case of Devereux v. McCrady, 46 S. C. 133, 24 S. E. 77. The second ground of objection was that it tended to contradict the deed.

Parol testimony is admissible for the purpose of showing that an instrument of writing purporting to be an absolute deed, was intended as a mortgage. Brownlee v. Martin, 21 S. C. 392. This testimony, however, is immaterial, and need not be discussed.

The agreement hereinbefore mentioned shows upon its face: (1) That the parties intended to provide for a lease. (2) That Ainsley H. Dinkins was empowered to exercise the option to purchase the lands at any time during the continuance in force of the lease. (3) That failure on the part of Ainsley H. Dinkins to1 pay any installment of rent when due should, at the option of Robert J. Palmer, terminate the lease immediately, on the exercise oí such option.

Robert J. Palmer was powerless to exercise his option, unless there was a failure to pay the installments of rents when due, and even then it was necessary to give notice that he had elected to- exercise his option, in order to- terminate the lease. The mere failure of Dinkins to1 pay an installment of rent did not ipso facto have that effect. Furthermore, the right of Palmer to exercise his option to terminate the lease, upon the failure of Dinkins to pay the rent, was subject to waiver; and the following testimony shows that it was not the intention, either of Palmer or his committee, to terminate the lease.

W. J. Simons testified as. follows, on cross-examination: “Q. Where is Palmer now ? A. In the city of Columbia. Q. You are still handling his affairs for him,? A. Yes, sir; I can state that prior to, the time I took charge, when the old man was considered in good mind, he would get after Dinkins about the short payments he would make, and the old man reminded him of the contract. He reminded him more than once that he had violated it. Q. You then allowed him to stay on ? A. Yes, sir; the old man said that Dinkins was so far behind with him that, in self-defense, he would have to help him, hoping to get his money. * * * Q. When you took possession of the property in question, you say you told the Dinkins boy to stay in charge until you gave him further orders? A. Yes, sir.”

After the commencement of this action, the defendant, W. J. Simons, served’ a notice on the plaintiff, which, after reciting the provisions of the agreement and the fact that Dinkins had failed to- pay the rent therein, stipulated, concluded as follows: “Now, therefore, in pursuance of said covenant, hereinbefore set forth, I hereby give you notice to quit and deliver up to. me immediately the premises herein-before desoribed, now held by you as my-tenant; and demand is hereby made for all installments of rent now due and owing, together with interest accrued thereon, from the 7th day of February, 1903, to date. Dated this- day of August, 1911. W. J. Simons, as committe of R. J. Palmer, a lunatic.”

On the 21st of October, 1911, W. J. Simons executed the following receipt: “Columbia, S. C., October 21, 1911. Received of John D. Dinkins, executor of the estate of H. Dinkins, one hundred and no one hundredths dollars for rent of land of R. J. Palmer, on Garners Ferry road, for the year 1911. W. J. Simons, committee of R. J. Palmer, a lunatic.”

There can be no- doubt that Dinkins exercised the option to purchase, within the ten years and during the continuance of the lease, as this action (which showed that he intended to exercise such option) was commenced on the 3d of August, 1911.

There is not a particle of testimony tending' to show that Dinkins was guilty of laches in exercising his option, as he had that right,. under the contract, at any time within ten years and during the continuance of the lease, which was continued of force after there was a failure to' pay rent, by acquiescence of Palmer and his committee. Laches cannot be imputed to1 a person who acts within the time prescribed by the terms of the contract. It would be in effect making' a contract for the parties for the Court to hold that the right to exercise the option of purchasing the land 'by Dinkins was forfeited under these circumstances. It is contended that, this being an action for specific performance, the complaint should be dismissed, for the reason that it does not appear that the plaintiff is ready and willing to purchase the land. If the complaint was defective on the ground that it did not state facts sufficient to- constitute a cause of action, a demurrer should have been interposed, otherwise such objection was waived. It is also contended that the Circuit Judge erred in ordering a sale of the property.

The rights of the vendor and vendee for enforcement oí the contract are practically the same, and the Court, in the exercise of a wise discretion, may order a sale of the property, whether the action for specific performance was ¡brought by the vendor or by the vendee. Gregorie v. Bulow, Rich. Eq. Cas. 235; Walker & Trenholm v. Kee, 16 S. C. 76; Peake v. Young, 40 S. C. 41, 18 S. E. 237; Blackwell v. Ryan, 21 S. C. 112; Good v. Jarrard, 93 S. C. 229, 76 S. E. 698, 43 L. R. A. (N. S.) 383; Whitmire v. Boyd, 53 S. C. 315, 31 S. E. 306.

“Where equity has once acquired jurisdiction, by reason of the claim for specific performance, it may retain jurist-diction and proceed to a complete adjudication, even to- the extent of establishing legal rights. Thus, in addition to decreeing specific performance the Court may give judgment for possession.” 20 Enc. PI. & Pr. 479, 480.

“On a bill by a vendor against a vendee, the sale of the latter's equitable estate in the land may be ordered to satisfy the unpaid purchase price, and a judgment against any deficiency may be entered against the defendant, but it is not a matter of course to direct a sale, and the Court may simply foreclose.the vendor’s right of purchase.” Id. 481.

“Where specific performance of an agreement is impracticable, the plaintiff 'may have approximate relief, in some other form, which will secure to him the substantial advantages of his contract. The Court is bound to see that it does that complete justice at which it aims, and which is the ground of its jurisdiction.” Id. 479.'

The 'exceptions raising* other questions are overruled, for the reasons stated by his Honor, the Circuit Judge.

Judgment affirmed.

Mr. Justice Eraser concurs with the Chief Justice.