Appeal
from Superior Court, Brunswick County; Bragaw, Judge.
Action
by George O. Gaylord against M. E. McCoy and others. From a
judgment for plaintiff, defendants appeal. Affirmed.
Where a
vendor, in an option contract to convey described real estate
free from liens, tendered a deed which omitted a part of the
land, and notified the purchaser that the other part would
not be conveyed and that liens would not be taken care of, he
breached the contract rendering a tender of the price
unnecessary.
Where a
vendor, required to execute a deed free from incumbrances
tendered a deed which omitted a part of the land, and
notified the purchaser that the omitted part would not be
conveyed and that liens would not be provided for, and the
purchaser demanded a deed according to contract, and the
vendor, before the time for performance, renewed his refusal
to execute a deed and satisfy judgments, the vendor breached
the contract, making a tender unnecessary.
See
also, 158 N.C. 325, 74 S.E. 321.
This is
an action to compel specific performance of the following
option executed by the defendants, which was duly probated
and was registered July 6, 1909: "Know all men by these
presents, that in consideration of the sum of four hundred
dollars ($400) paid by George O. Gaylord, of Wilmington
state of North Carolina, to the undersigned parties, the
receipt of which is hereby acknowledged, we, Mrs. M. E
McCoy, widow of the late L. C. McCoy, of Brunswick county,
state of North Carolina, C. L. McCoy and wife, Lutie McCoy,
of Laurinburg, state of North Carolina, Charles F. McCoy, of
Cameron, state of South Carolina, and F. M. McCoy and wife,
Rosa M. McCoy, of Wilmington, state of North Carolina, do
hereby contract and agree with the said George O. Gaylord, to
sell and convey unto the said George O. Gaylord and his heirs
and assigns all that certain tract or parcel of land situate,
lying and being in Northwest township, Brunswick county,
state of North Carolina, adjoining the lands of M. W.
Murrell, B. T. Trimmer, Z. E. Murrell, the Metts estate, and
lying on both sides of the Carolina Central Railroad, known
as the L. C. McCoy place, and the same on which Mrs. M. E.
McCoy resides at the present time; the said tract of land
containing fifteen hundred acres, more or less, and lies on
the waters of Mill creek and near the waters of Hood's
creek, and is all of the land owned by Mrs. M. E. McCoy, C.
L. McCoy and wife, Charles McCoy and wife, and F. M. McCoy
and wife, in the county of Brunswick, state of North
Carolina; and that we will execute and deliver to said George
O. Gaylord and his heirs and assigns, at his or their
request, on or before the 3d day of November, 1909, a good
and sufficient deed for the said lands, with full covenants
and warranty, and free from all incumbrances; provided and
upon condition, nevertheless, that the said George O.
Gaylord, his heirs and assigns, pay to the undersigned
parties, or their representatives or assigns, the sum of nine
thousand dollars ($9,000) less whatever sum has been paid as
an option on said land, and such sum or sums as it might be
necessary to withhold for the payment of unpaid taxes and
outstanding incumbrances on said land. It is understood and
agreed that the said sale is to be made at the option of the
said George O. Gaylord or his heirs or assigns, to be
exercised on or before the said 3d day of November, 1909. And
it is further understood and agreed that if the said George
O. Gaylord and his heirs and assigns shall not demand of the
undersigned parties the deed herein provided for, and tender
payment as herein provided for, on or before the 3d day of
November, 1909, then this agreement to be null and void, and
the undersigned parties are to be at liberty to dispose of
the land to any other person or to use it as the undersigned
parties may desire, in the same manner as if this contract
had never been made; but otherwise this contract to remain in
full force and effect. And it is furthermore understood and
agreed that no timber is to be cut or removed from said land
during the continuance of the option. The said Mrs. M. E.
McCoy, C. L. McCoy and wife, Charles F. McCoy and wife,
covenant with the said George O. Gaylord, his heirs and
assigns, that they are seised of the above-described premises
in fee, and have the right to convey the same in fee simple,
and that they will warrant said title to be free from defects
and that the said title is hereby warranted to be free from
defects. It is understood that should George O. Gaylord
decide to purchase said tract of land that from the same what
is known as the L. C. McCoy graveyard is to be excepted, the
said graveyard being near Mill creek and on the Wilmington
and Fayetteville road, containing one-half acre, more or
less, and what is inclosed by an iron fence; also is excepted
what is known as the Samuel Rowell graveyard, containing
one-half acre, more or less, and on the edge of the right of
way of the Carolina Central Railroad. And to the true and
faithful performance of this agreement we do hereby bind
ourselves and heirs, executors, administrators and assigns to
the said George O. Gaylord and his heirs, executors,
administrators and assigns."
On
October 20, 1909, the plaintiff notified the defendants that
he had decided to purchase the lands described in said
option, and that he demanded a deed in accordance with its
terms.
On
October 29, 1909, the defendants, through their attorney,
prepared a deed which they tendered to the plaintiff, in
which said deed there was omitted the following descriptive
words which were in said option: "And is all of the land
owned by Mrs. M. E. McCoy, C. L. McCoy and wife, Charles F.
McCoy and wife, and F. M. McCoy and wife, in the county of
Brunswick, state of North Carolina"--and, at the time of
tendering said deed, the defendants, through their attorney,
wrote a letter to the plaintiff in which they said, among
other things, that they tendered the deed in compliance with
the terms of the option and demanded the balance due on the
purchase price; that they would not settle the creditors'
suit brought against the plaintiff, F. M. McCoy and others,
as they did not have to do so in order to give a good title,
and that in their opinion the paper writing did not cover the
60 acres of land spoken of as the Anders place; and that they
would not give a deed for the 60 acres that would cover the
interest of F. M. McCoy, nor would they warrant the title to
the 60 acres, and that F. M. McCoy would sign no deed
covering his interest in the 60 acres.
On
November 1, 1909, the plaintiff replied
to said letter of October 29th, stating that the proposition
submitted in the letter of October 29th was not in accordance
with the terms of said option, and that the deed tendered did
not contain the full description of the land, and making the
following demands: "I demand a warranty deed from your
clients for the said land above described, free from all
incumbrances, as provided in said contract; and the bearer,
Mr. Turner, will tender you the purchase price, and you may
deliver the deed to him. I am advised by counsel that I am
entitled under this contract to a title free from all
incumbrances; also that the suit of J. A. Taylor and others
is a judgment creditors' bill, which, if the suit is
decided adversely to the McCoys, will be a charge or
incumbrance upon at least one-third of the land, and is in
the nature of a lis pendens; and also that there is another
suit which may be decided adversely, which must be provided
for. You will understand that I am insisting on all
judgments, mortgages, and other liens being canceled; but I
am entirely willing, if there are any pending suits which
amount to a lis pendens, to pay the money and take a good
bond from your client, protecting me in such suit, in the
event they are decided adversely to your client."
Said
letter of November 1, 1909, written by the plaintiff, was
handed to the defendant's attorney by the attorney of the
plaintiff, and at the same time the attorney of the plaintiff
attempted to make a tender of the purchase money, and an
account of what occurred at the time is stated by the
defendant's attorney as follows: "On November 1st
Mr. Turner brought me certified check for $8,600, and said
'I want to tender you, and want to know if you make the
point that it is not cash?' I told him that F. M. McCoy
was the only one who had spoken to me. I presumed I
represented all of the defendants, but, if the others should
say I was not authorized, I couldn't swear that I did
represent them, 'and if, under the circumstances, you
want me to waive it, I will do so.' He said, 'No, I
will get the cash.' I said, 'Very well; comply with
the law.' Turner came back about 1. p. m. with a shot bag
in hand, and laid it on my table, with a letter written by
George O. Gaylord, addressed to me, as attorney, dated
November 1, 1909, and said he wanted to tender me $8,600, and
wanted me to count the money. I read the letter and began
counting. The first package contained $500 and was of paper
currency, some five, some ten, and some twenty dollar bills.
I counted the first package about four-fifths through, and
turned to Turner and said: 'Mr. Turner, I want to call
your attention to what you are offering me; here are some
national bank notes, silver certificates, some treasury
notes, some gold certificates. I don't have to take
this.' I remember one national bank note was for...
