Armstrong v. Henson

• Decision Date: 24 March 1927
• Docket Number: (No. 12182.)
• Citation: 137 S.E. 439
• Parties: ARMSTRONG. v. HENSON.
• Court: South Carolina Supreme Court

137 S.E. 439

ARMSTRONG.

v.HENSON.

(No. 12182.)

Supreme Court of South Carolina.

March 24, 1927.

Appeal from Common Pleas Circuit Court of Spartanburg County; Edward McIver, Judge.

Action by T. E. Armstrong against J. V. Henson.Judgment for plaintiff, and defendant appeals.Affirmed.

The decree of the circuit judge is as follows:

This is an action for specific performance, under which the plaintiff asks the court to require the defendant to convey to him, by proper deed in fee simple, free from incumbrances, a certain tract of land described as follows:

"All that parcel or tract of land, in Spartanburg county, said state, surveyed off of the home place of J. V. Henson, on southeastern portion thereof, on both sides of Jordan road, adjoining lands of A. B. Groce, J. T. Smith, and Mrs. Morrow, with the following boundaries: Beginning at an iron pin in the forks of the road on Greenville and Spartanburg county line, and running thence;N. 83°E. 25 chains to an iron pin in the pasture; thence N. 18°E. 41.51 chains across swamp and field to a stake on the Briggs line; thence N. 70.15°E. 2.08'chains to a center of Middle Tyger river; thence down the meanderings of said river about 35 chains to the mouth of a ditch, ash 3-X, J. T. Smith's corner; thence up ditch S. 52° W. 3.90 chainsto a stake; thence up ditch N. 43°W. 1.18 to a stake; thence N. 78°W. 1.25 chains to a stake; thence S. 86 1/4° W. 1.07 chains to a stone by wire fence; J. T. Smith's corner; thence S. 57 3/4%° W. 32.56 chains to a stake on the north side of a branch near a large white oak, J. T. Smith's corner; thence up the meanderings of said branch about 22 chains to an iron pin near a bridge and mouth of a ditch; thence N. 1 3/4° E. 14.50 chains up the county line to the beginning corner, containing 100 acres, more or less, according to survey made by W. A. Christopher, September 16, 1919."

It was by order of court, referred to the master for Spartanburg county to take the testimony and report the same with his conclusions of law and fact.The cause now comes before me upon exceptions to the master's report, which was adverse to the plaintiff, rejecting his claim for specific performance and recommending that the complaint be dismissed.

The defendant is a farmer residing on a portion of the farm in question, in this county, near the town of Greer.J. D. Lanford who made the original contract with the defendant, was at the time of the contract, a member of two firms both engaged in the handling of real estate, including farming lands.On July 31, 1919, J. D. Lanford procured from the defendant the instrument attached to the complaint as an exhibit, which was duly executed by the defendant.The evidence fails to show any fraud or overreaching in connection with this transaction, and defendant's counsel in argument concedes that there was none.Under this instrument, the Carolina Realty Company, one of the firms of which J. D. Lanford was a member, was given the right to sell and to find a purchaser for the lands mentioned, upon the terms and conditions mentioned in said instrument; that is, the purchase price to be $10,000; one-third payable in cash, and the balance in one and two years with 7 per cent, interest per annum.On August 16, the said J. D. Lanford executed an instrument purporting to convey all rights under the instrument of July 31 to T. E. Armstrong, the plaintiff, but the instrument so executed was, by mistake of Lanford, signed in the name of Cotton States Land Auction Company, the other firm of which Lanford was a member, he having forgotten just how the original contract of Henson was drawn.He says, however, that it was bis purpose to convey and assign to Armstrong all the rights and interests of his firm under said instrument of July 31, as far as he could.Under this assignment, Armstrong actually paid $500.The evidence shows that Armstrong is a farmer and owns considerable farm lands, which he has cultivated as a business enterprise.He testifies that he wanted the lands in question as an investment for farming purposes.Soon after the assignment to him, he saw defendant, Henson, and acquainted him with the fact that he bad become the purchaser, and discussed with Henson the matter of executing the deed and the payment of the cash portion of the purchase price.Henson at that period raised no question as to Armstrong's right to comply with the contract, pay the purchase price, and demand the deed, and, in fact, Henson in his testimony before the master does not question, but admits, his liability to execute the deed, and expresses his willingness to make as good a deed as he can, but without bis wife's dower.There were several conversations between plaintiff and defendant about carrying out the trade.Finally the plaintiff carried and tendered to the defendant the full amount of cash due on the purchase price and offered to comply fully on his part, which tender was refused by defendant, whose only excuse was that his wife refused to renounce her dower.It is shown that it was proposed to the defendant that a sufficient amount to cover the dower interest be deposited as protection against the dower, but this was refused.This action was thereupon begun to compel performance.I find from the evidence that the plaintiff acted in entire good faith in accepting and acting upon this contract and in his efforts to get title to this land for purposes of farming and for investment, and that Lanford and his companies were engaged in a perfectly legitimate business and acted in good faith in the matter.They complied with the authority given, by finding a bona fide purchaser who was ready, willing, and able to comply.The instrument executed by the defendant bound him to convey by conveyance free from incumbrance.He does not question its liability and responsibility to convey, except as to dower.

[I] As I understand the master's report, he refused relief on the sole ground that he was precluded from granting it by the case of Schmid v. Whitten, 114 S. C. 245, 103 S. E. 553.It is urged upon me by defendant's counsel that the case at bar is on all fours with that case, and that the court of equity is without jurisdiction to grant the relief under the facts here shown.I recognize fully the duty of this court to follow and be...