Cape Fear Lumber Co v. Evans *

Decision Date11 January 1904
Citation48 S.E. 108,69 S.C. 93
PartiesCAPE FEAR LUMBER CO. v. EVANS et al.*
CourtSouth Carolina Supreme Court

WRITTEN CONTRACT — PAROL EVIDENCE—SUBROGATION.

1. Where the parties had entered into a written contract giving one of them an option under seal to purchase timber, parol evidence of a previous stipulation is inadmissible to vary its terms.

2. Where an owner of land executed an option for the sale of the timber thereon, and thereafter sold the timber to a third person, and such third person paid a mortgage thereon, on the decree for specific performance o£ the option sale, such third person is entitled to be subrogated to the rights of the mortgagee.

¶ 2. See Subrogation, vol. 44, Cent Dig. §§ 30, 38.¶

Appeal from Common Pleas Circuit Court-of Marion County; Dantzler, Judge.

Action by the Cape Fear Lumber Company against William Evans, H. J. Matheson, and the Tilghman Lumber Company. From the circuit decree, plaintiff appeals. Reversed.

T. W. Boucher, Johnson & Johnson, and C. A. Woods, for appellant

Knox Livingston, for respondents.

GARY, A. A. J. (in place of WOODS, J., disqualified). This is an action instituted by the plaintiff for the specific performance of a contract commonly denominated an "option." The complaint, after the general allegations of its incorporation and that of the defendant Tilghman Lumber Company, alleges that the defendant Evans, being the owner of certain lands therein described, situate in Marion county, on the 21st day of November, 1898, for a valuable consideration, executed and delivered to the plaintiff an instrument of writing in form as follows:

"For and in consideration of one dollar cash in hand, receipt of which is hereby acknowledged, Willie Evans hereby gives to Cape Fear Lumber Company or assigns the option of purchasing within three months.(90 days) all the timber on our lands for the lump sum of five hundred dollars, except such as is necessary for the plantation use, rail, wood, and board, the said land containing 1, 112 acres, more or less, and is bounded on north by Catfish creek; south by public road from Marion to Bennettsville; east by lands of W. B. Atkinson and John Moore; west by a public road from Kirby's Crossroads to Little Rock. The said Cape Fear Lumber Company to have exclusive rights of way over said land, to have ingress and egress at any and all times for men, teams, etc., to build, construct, and operate a railroad across said lands so long as they may desire, free of charge. It is also agreed that the Cape Fear Lumber Company shall be held liable for only such damages by fire, in case it catches from their locomotive, as follows: If fencing or building are burnt, they are to have the option of replacing fencing or building as good as when it caught fire or pay what sum is mutually agreeable, the option of doing either to remain with Cape Fear Lumber Company. It is further agreed that, in case any taxes should be levied upon the standing timber, we will pay it, as it is a part of the land until cut. The said Cape Fear Lumber Company to have ten years from the time they commence to cut our timber to cut and remove said timber, and if at the end of that time they havenot removed said timber then by the payment of 6 per cent, upon purchase price, they can have ten (10) years longer time to remove same. William Evans. [Seal.]

"Witnessed this 21st day of November, 1898. H. W. Kellam.

"S. Mitchell."

On the 17th day of February, 1898, the plaintiff accepted the option, made tender of the price, and demanded performance on the part of the defendant; but the defendant declined to accept the money and perform the agreement. The complaint alleges that the plaintiff performed on its part all the conditions of said agreement, and has been and is ready to perform the same; that it has no adequate remedy at law, etc. It further alleges that, after the execution and delivery of the alleged agreement, defendant Evans sold and conveyed to his codefendant Tilghman Lumber Company the timber on said lands, and granted the easements in said alleged option set forth as above. The agreement to the plaintiff was recorded in the office of the register of mesne conveyance for Marion county, and the defendant Tilghman Lumber Company had notice of the same. At the time of the execution of the alleged agreement or option the defendant A. J. Matheson held a mortgage on the land described in the option for the purchase money thereof to the amount of $500, which mortgage, subsequent to the execution of said option, has been released by said Matheson to the defendant Tilghman Lumber Company; he having received the amount due thereon. The prayer of the complaint is that the deed from Evans to the defendant Tilghman Lumber Company be declared void and canceled; that Evans be required to execute a conveyance and Matheson a release of the lien of his mortgage to the plaintiff, in accordance with the terms of said agreement; and for injunction and general relief.

The defendant Evans in his answer admits title to the tract of land in question, and that he signed a paper of the purport of that set forth in plaintiff's complaint; but he denies that said instrument in writing ever became operative, obligatory, or binding upon him. He admits that tender was made of $500, and a grant to his codefendant Tilghman Lumber Company for valuable consideration was executed by him as alleged in the complaint. As to the other allegations of the complaint, he alleges that he has no knowledge or information sufficient to form a belief as to the truth of the same, and makes a general denial, and for a further defense alleges that on or about November 21, 1S98, he signed an instrument of writing to the purport of that set forth in the complaint, but he avers that he signed the same upon the express condition and provision that it should have no force or effect, and be null and void, unless his codefendant Matheson assented thereto, signed the same, and released the lien of a mortgage held by him on said land to the extent of said timber, and in the easements the said agreement mentioned; that said agreement was signed by him, delivered to and received by one Mitchell, who had conducted the negotiations, and was the agent of the plaintiff, upon the conditions and stipulations aforesaid, and that said Mitchell secure the written assent and release of Matheson thereto;...

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