Crotts v. Thomas Et Ux, 595.

• Court: United States State Supreme Court of North Carolina
• Citation: 38 S.E.2d 158,226 N.C. 385
• Decision Date: 22 May 1946
• Docket Number: No. 595.,595.
• Parties: CROTTS et al. v. THOMAS et ux.

226 N.C. 385
38 S.E.2d 158

CROTTS et al.
v.
THOMAS et ux.

No. 595.

Supreme Court of North Carolina.

May 22, 1946.

Appeal from Superior Court, Stanly County; Frank M. Armstrong, Judge.

Action by R. F. Crotts and G. L. Crotts against J. B. Thomas and wife, Mrs. J. B. Thomas, for specific performance of option to buy land. From judgment sustaining defendant's motion for judgment as of nonsuit, plaintiffs appeal.

Reversed.

This is an action for specific performance.

On August 8, 1935, J. B. Thomas, who was then unmarried, leased to the plaintiffs for a period of ten years, beginning January 1, 1936, for an annual rental of $200, a tract of land described by metes and bounds, situate in Stanly County near the City of Albemarle, containing 30 acres more or less. The lease provided for the rent to be payable $100 on or before July 1, 1936, and $100 on or before the first days of January and July of each year thereafter, during the term of the lease. The rent has been paid through July 1, 1945.

[38 S.E.2d 159]

The plaintiffs leased the property for the purpose of establishing and maintaining a golf course thereon. A golf course was laid out and used as such until about two years ago; when, on account of the war, it was discontinued temporarily.

The lease contained an option in the following language: "It is understood and agreed and the said J. B. Thomas, party of the first part, does hereby specifically agree that at any time after the signing of this indenture, during the term of this lease, that he will sell and convey by a good and sufficient deed the lands herein described to the parties of the second part, their heirs and assigns, at a price to be agreed upon, which price in no event shall be more than at the rate of $150.00 per acre for said land and to the performance of this agreement, the said J. B. Thomas, party of the first part does hereby bind himself, his heirs executors and administrators."

The lease was executed under seal, duly acknowledged and recorded in the office of the Register of Deeds for Stanly County on August 12, 1935.

In April, 1945, the plaintiffs notified the defendants of their intention to exercise the option to purchase the property and on July 7, 1945, the plaintiffs tendered $4,500 to the defendants as the purchase price of 30 acres and an additional $750, to cover any excess in the acreage which might be determined by a survey. The defendants have at all times refused to convey the property to the plaintiffs.

At the close of plaintiffs' evidence, the defendants moved for judgment as of nonsuit. The motion was granted, and the plaintiffs appeal to the Supreme Court, assigning error.

W. L. Mann, of Albemarle, Helms & Mulliss, of Charlotte, and Brown & Mauney, of Albemarle, for plaintiffs.

Morton & Williams and R. L. Smith & Sons, all of Albemarle, for defendants.

DENNY, Justice.

The plaintiffs challenge the correctness of his Honor's ruling in sustaining the defendants' motion for judgment as of nonsuit.

The defendants contend the judgment below should be sustained for the following reasons: (1) The option was not supported by a consideration; (2) the offer was withdrawn; (3) acceptance was not in accord with offer; and (4) the option is too indefinite as to the sale price, to be enforceable.

It is the law in this jurisdiction that instruments under seal require no consideration to support them. Thomason v....