Belin v. Stikeleather

• Decision Date: 10 December 1957
• Docket Number: No. 17364,17364
• Citation: 101 S.E.2d 185,232 S.C. 116
• Parties: Prince BELIN, Appellant, v. C. W. STIKELEATHER, J. W. Wallace and Louise Sallenger, nee Wallace, Respondents.
• Court: South Carolina Supreme Court

Page 185

101 S.E.2d 185

232 S.C. 116

Prince BELIN, Appellant, v. C. W. STIKELEATHER, J. W. Wallace and Louise Sallenger, nee

Wallace, Respondents.

No. 17364.

Supreme Court of South Carolina.

Dec. 10, 1957.

William W. Bennett, Florence, Elliott D. Turnage, Darlington, for appellant.

George W. Keels, J. W. Wallace, Florence, for respondents.

OXNER, Justice.

This action was brought by the buyer, Prince Belin, to reform a written contract for the sale of real estate and for specific enforcement of the contract as reformed. Joined as defendants were C. W. Stikeleather, the seller, Louise Sallenger, his grantee, and J. W. Wallace who acted as agent of the grantee in her dealings with the plaintiff. Stikeleather demurred to the complaint on the ground that as to him it failed to state a cause of action. From an order sustaining this demurrer, there has been no appeal. The case was then referred to the Master of Florence County who after taking the testimony filed a report recommending that the relief sought by plaintiff be denied. His report was confirmed by the Circuit Judge. This appeal by the plaintiff followed. Since J. W. Wallace was only an agent of the grantee, the real contest here is between the plaintiff Belin and the defendant Mrs. Sallenger.

Plaintiff is a Negro with a sixth grade education. He served in the army approximately three years and reached the rank of corporal. He impressed the Master as being of above average intelligence. At the reference the defendants offered no testimony. We have, therefore, only that offered by the plaintiff, which may be summarized as follows:

On November 25, 1945, Stikeleather's agent took plaintiff to see a farm in Florence County and pointed out its boundaries. The agent had no plat. Plaintiff inquired as to the number of acres in the farm. The agent replied that he did not know. Plaintiff decided to purchase the property. The price agreed upon was $5,500 with a down payment of $1,000. The next day the down payment was made and plaintiff and Stikeleather entered into the following contract:

'Seller agrees to sell to buyer and to deliver fee simple title to buyer on January 1st, 1946, to property hereinafter described, and seller acknowledges receipt of the sum of One Thousand ($1,000.00) Dollars paid by buyer, sale price to be Five Thousand Five Hundred ($5,500.00) Dollars.

'Buyer agrees to execute six per cent mortgage for the difference when sale is closed. The mortgage is to provide for payments of Twenty-five ($25.00) Dollars per month, in addition to interest; for the first twenty (20) months, and then the mortgage is to provide for annual curtailments to suit the buyer, and, of course, interest.

'The property covered by this contract is located in Back Swamp Township No. 3 in the County of Florence, State of South Carolina, in Woodville School District No. 2, and is all of the land on the west side of the proposed new paved highway from Florence to Cashua Ferry Bridge across the Pee Dee River, except one-half of the lands to the top of the hill, which are known as the swamp portion to the tract of land.'

Plaintiff testified that in signing the contract he thought the description referred to the same property pointed out to him by the seller's agent. Plaintiff entered into possession on December 26, 1945, but was never given a deed. Sometime later he reroofed and painted the dwelling, repaired the barns, fenced in the woodland and made other improvements. He said that apart from his own labor he expended between $1,000 and $1,500 in improving the property.

In May, 1946, the seller had his property surveyed. The plat showed the part cleared and that which was in woods and the property was divided into two tracts of 53.2 acres and 34.7 acres. On this plat the surveyor made the following notation: 'Map of Eighty-seven and 9/10 acres, More or Less, Surveyed at Request of J. W. Wallace. Tract 'A', Containing Approximately 53.2 Acres, is Being Sold to Prince Belin. Surveyed May 29, 1946.'

A month or two later the plat was delivered to the plaintiff. In reference to this, he testified as follows:

'Q. How did you gain possession of this plat? A. Mr. Wallace gave it to me.

'Q. When did he give it to you? A. In June or July of 1946.

'Q. What purpose were you given this plat, if any? A. To show me what land I was buying.

'Q. Did someone tell you that? A. Mr. Wallace said here is a plat of the place here.'

At the reference this plat was handed to the plaintiff who testified that when the seller's agent took him out to look over the premises the boundaries shown him included the entire 87.9 acres as shown on the plat. It is the plaintiff's contention that this is what he bought and through mutual mistake of the parties the contract entered into by them did not correctly represent the property sold. He asks that the contract be reformed so as to include the entire 87.9 acres. The defendants contend that Stikeleather sold to plaintiff only the 53.2 acre tract.

Plaintiff commenced making payments of $25 a month to Stikeleather in January, 1946. From that date to September, 1947, his total payments to Stikeleather aggregated $525. On June 30, 1948, Stikeleather sold the entire tract of land to Mrs. Sallenger. Shortly thereafter Wallace, as the agent of Mrs. Sallenger, saw plaintiff and told him to make all subsequent payments to him or to his mother, Mrs. Sallenger. Plaintiff then saw Stikeleather and was told that this was proper. The record shows that the following payments were made to Mrs. Sallenger: August 25, 1948, $400; November 17, 1949, $200; September 5, 1950, $400; September 25, 1951, $400, making a total of $1,400. Plaintiff testified that during 1952 he went to Wallace's home and offered to pay $400. Wallace refused to accept the money. Plaintiff then went to see an attorney. After this attorney delayed for some time in taking action, plaintiff secured other counsel and this action was commenced in May, 1954.

The Court below denied reformation. Specific performance of the contract as written was also refused upon the grounds (1) that plaintiff had an adequate remedy at law, (2) that he had not fulfilled the terms of the written contract, and (3) that he was guilty of laches. In addition to denying any relief to the plaintiff, the Court required him to vacate the premises and to pay a rental of $400 for 1955, which amount was made a lien on plaintiff's crops for that year.

We shall consider first plaintiff's right to reformation. On this issue the burden was upon him to show by clear and convincing evidence that there was not only a mistake but that it was reciprocal and common to both parties. Gowdy v. Kelley, 185 S.C. 415, 194 S.E. 156; Moore v. Jeffords, 195 S.C. 512, 12 S.E.2d 737. 'Before a court of equity will reform a solemn instrument, it must be shown by evidence which is the most clear and convincing, not simply it was a mistake on the part of one of the parties, but that it was a mutual mistake; that both parties intended a certain thing; and that by mistake in the drafting of the paper did not get what both parties intended.' Sullivan v. Moore, 92 S.C. 305, 75 S.E. 497. Where only one of the parties is under such mistake, 'equity will refuse its aid, except under very strong and extraordinary circumstances, showing imbecility or something which would make it a great wrong to enforce the agreement, and this must be made to appear by competent testimony of the clearest kind.' Kennerty v. Etiwan Phosphate Co., 21 S.C. 226.

We do not think the plaintiff has met the test laid down by the foregoing authorities. He may have thought that he was buying the entire tract but it does not clearly appear that Stikeleather so understood. While we do not agree with the Master and...