Cape Fear Lumber Co v. Evans *
Decision Date | 11 January 1904 |
Citation | 48 S.E. 108,69 S.C. 93 |
Parties | CAPE FEAR LUMBER CO. v. EVANS et al.* |
Court | South Carolina Supreme Court |
WRITTEN CONTRACT — PAROL EVIDENCE—SUBROGATION.
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:
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;...
To continue reading
Request your trial