Carroll v. Page, 20014

• Decision Date: 15 May 1975
• Docket Number: No. 20014,20014
• Citation: 264 S.C. 345,215 S.E.2d 203
• Court: South Carolina Supreme Court
• Parties: M. N. CARROLL, Respondent, v. Jack H. PAGE et al., Appellants.

Page 203

215 S.E.2d 203

264 S.C. 345

M. N. CARROLL, Respondent, v. Jack H. PAGE et al., Appellants.

No. 20014.

Supreme Court of South Carolina.

May 15, 1975.

Benny R. Greer, Darlington, and H. T. Abbott, Conway, for appellants Jack H. Page and others.

Howard A. Anderson, Jr., North Myrtle Beach, for appellant Carolina Realty & Auction, Co., Inc., Trustee.

H. E. McCaskill, Conway, for respondent.

MOSS, Chief Justice:

M. N. Carroll, the respondent herein, brought this action against Cordie Page to compel specific performance of an option to purchase real estate contained in a lease. Carolina Realty & Auction Company, Inc., Trustee, was joined as a party to this action because of the execution of a subsequent conditional option entered into by Cordie Page with it, and by cross-complaint it sought specific performance on the basis of such option.

Cordie Page died on February 16, 1973, and Jack H. Page and A. J. Ambrose, as Executors, and Sarah P. Cooper, as Executrix, of the Last Will and Testament were substituted as parties to the action. For clarity they will be referred to as 'Page'.

Carroll and Carolina Realty asked for alternate relief in the form of money damages. This case, with the consent of the parties, was referred to the Master in Equity for Horry County, to take the testimony and report his findings of fact and of law to the circuit court. The Master took the testimony and filed his report recommending that both the complaint and the cross-complaint be dismissed and that Page refund to Carolina Realty the sums paid for the second option and extension thereof, with interest. The case was recommitted to the Master for additional findings of fact. After the supplemental report was filed, the exceptions of the parties to the recommendations of the Master were heard. The trial judge issued his decree in which he reversed the Master and ordered Page to convey the land in question to the respondent and refund to Carolina Realty & Auction Company, Inc., Trustee, the option fee paid by it to Page. From this decree Carolina Realty & Auction Company, Inc., Trustee, and Page have appealed to this Court.

The scope of review in a case where the Master and the circuit judge have disagreed is well settled in this State. In the case of Talbot v. James, 259 S.C. 73, 190 S.E.2d 759, this Court said 'This being an equity case and the Master and the Circuit Judge having disagreed and made contrary findings on the material issues in the case, this Court has jurisdiction to consider the evidence and to make findings in accordance with our view of the preponderance or greater weight of the evidence.'

As to actions for specific performance, this Court said in Flowers v. Roberts, 220 S.C. 110, 66 S.E.2d 612:

'The Court had under consideration such a contract in Samuel v. Young, 214 S.C. 91, 51 S.E.2d 367, 370, where it was stated: 'It is a well established rule that a party cannot demand the specific performance of a contract of this kind as a matter of right, but that the exercise of this power rested in the sound discretion of the Court, in view of all the surrounding circumstances."

This is an action in equity and as stated in 30 C.J.S. Equity § 89, p. 976:

'In applying the doctrines of equity, the equities of both sides are to be considered, and each case must be decided on its own particular facts.'

Page and the respondent entered into an agreement on January 13, 1964, designated as a 'Lease of Fishing and Hunting Rights and Use of Building.' The lease as amended covered the described real estate and extended through the date of March 31, 1974. The lease provided in part as follows:

'It is agreed that should the Lessor elect or should the Lessor decide to sell the whole property at any specific figure, he does hereby agree to give the Lessee the right to buy the whole property at the figure so determined; should the Lessee decide that he does not want to take the whole property at the price named, then he agrees to sell his rights in the property under this lease after the first five (5) years has expired, at a price which would pay him for any expense that he has gone to in repairing or improving the property, under this lease, and which would pay him a reasonable price for his rights for the remainder of the term of this lease. Such improvements are to include improvements on the buildings, duck blinds or of such nature back in rice fields.'

The record shows that prior to May 5, 1969, Page notified the respondent that he had decided to sell the described real estate for the sum of $125,000.00, and that he could purchase this property for the price stated if he so desired. There is some dispute as to the sequence of events which ensued. However, it is clear that the respondent did not immediately accept Page's offer to sell but said that he needed a few days to think it over. The Master found that the respondent did not make an unconditional acceptance of Page's offer until June 16, 1970. The Master further found that the attempted acceptance was not made within a reasonable time and that the respondent was not entitled to specific performance. The trial judge found that the acceptance was made immediately prior to the service of suit papers on May 29, 1970. The trial judge then found that, although respondent's negotiations were less than definite in nature, his acceptance was in compliance with the terms of the option, citing the case of Adams v. Willis, 225 S.C. 518, 83 S.E.2d 171. In our opinion, this case is not controlling because the rights of the lessee under the purchase option were continuing rights by virtue of the specific language used. It was there provided that if the lessee did not elect within ten days to purchase, then the lessor could sell, but subject to the lease and to the continuing right of the lessee to purchase. The Court further held in the Adams case that the lease was in effect at the time the plaintiff exercised the option to purchase and that such exercise was timely made.

The respondent admits that Page informed him that he had given an option to Carolina Realty & Auction Company, Inc., as Trustee for one Cannon, to purchase the property in question for $125,000.00 and that he would sell the same property to the respondent at the same price. To this the respondent admits that he replied, 'I wasn't sure I could handle the thing at that time, but I'd like for him to give me a few days to decide on it.'

The first unconditional acceptance by the respondent of the offer made by Page was found by the trial judge to be on May 29, 1970, and by the Master to be on June 16, 1970. Under either view the acceptance by the respondent was made more than one year after Page made his offer. We point out that no time was fixed in the option given to the respondent for his acceptance of Page's offer to sell, but the respondent only asked, following the offer to sell, for 'a few days' to decide as to whether he would exercise his option to purchase the property.

It is sufficient to say that one year's delay between the offer made by Page and the acceptance by the respondent cannot be construed to have taken place within 'a few days.' It follows that the respondent did not exercise his option to purchase within a reasonable time, and he is, therefore, not entitled to specific performance. Lindler v. Adcock, 250 S.C. 383, 158 S.E.2d 192.

The next question is whether Carolina Realty, as Trustee, is entitled to specific performance against Page. Here again the Master and trial judge disagreed. On May 5, 1969, Page gave an option to Carolina Realty as Trustee, whereby in consideration of the sum of $1,500.00 he agreed to sell to Carolina Realty the property involved for the total sum of $125,000.00 the said option extending until 12:00 noon on November 5, 1969. On October 22, 1969, a new option was entered into between these parties whereby for an additional consideration the terms of the option were extended until 12:00 noon on May 5, 1970, with a new purchase price of $127,822.50. A new provision was inserted in this option, as follows:

'It is understood and agreed that if title is not approved and if the grantor is unable to...