Holly Hill Lumber Co. v. McCoy

• Decision Date: 14 June 1943
• Docket Number: 15550.
• Citation: 26 S.E.2d 175,203 S.C. 59
• Parties: HOLLY HILL LUMBER CO., Inc., v. McCOY.
• Court: South Carolina Supreme Court

26 S.E.2d 175

203 S.C. 59

HOLLY HILL LUMBER CO., Inc., v. McCOY.

No. 15550.

Supreme Court of South Carolina

June 14, 1943

L D. Jennings and M. W. Seabrook, both of Sumter, for appellant.

T B. Bryant, Jr., of Orangeburg, for respondent.

BAKER Justice.

In an action for specific performance brought by the respondent against the appellant, this Court has already affirmed an order of the Circuit Court requiring the appellant to specifically perform a contract for the sale by him to the respondent of a certain tract of land.SeeHolly Hill Lumber Company v. McCoy,201 S.C. 427, 23 S.E.2d 372 380.The wife of the appellant was not a signatory party to the instrument (originally in the form of an option) that gave rise to the appellant's contractual obligation to convey.In the argument on the first appeal this fact was called to our attention as one of the reasons why the decree for specific performance granted by the Circuit Court should not be affirmed, the contractual engagement of the appellant having been that he would deliver to the respondent, on the terms stated, a "good marketable title."On this subject we said in our former opinion: "Finally, it is suggested that if the judgment of the lower Court be affirmed and specific performance required, the inchoate dower interest of the defendant's wife will be outstanding; and that if Mrs. McCoy should refuse to renounce dower the defendant would be unable to give the good and marketable title which he contracted to give.We shall not attempt to meet a situation which is not now before us.There is no evidence in the record that the wife of the defendant will refuse to renounce dower.If such situation should develop the parties will doubtless seek an appropriate remedy in the lower Court."

Following the filing of the opinion of this Courtthe respondent by its attorney served notice upon the attorneys for the appellant that at a time named they would move before the Circuit Judge for an order directing the appellant"to forthwith specifically perform the contract for the sale of the real estate described in the complaint in this action by executing and delivering to the plaintiff a deed for the premises upon the payment of the balance of the purchase price as provided for in the judgment order of this Court, which said order, upon appeal, has been affirmed by the Supreme Court of South Carolina."

The service of the above notice was preceded by discussions between counsel for the respective parties looking toward the delivery of a deed in accordance with the decree for specific performance granted as above stated.Before the time named for the hearing of the aforestated motion, counsel for the respondent was served with notice that certain objections would be interposed to the hearing and granting of the motion.Attached to this notice is a petition in which, after challenging the sufficiency of the content of the notice to accomplish the purpose for which the same was served, it is set forth that prior to the service of the respondent's motion the appellant had tendered to the respondent a general warranty fee simple deed conveying to the respondent the property involved in this litigation, which deed, it is alleged, was rejected by the respondent on the ground that it contained no renunciation of dower, unless the appellant would permit the respondent to deduct one-sixth of the amount of the purchase price to represent the value of the inchoate dower right of appellant's wife.From the petition and affidavits served in connection therewith it is shown that the position of the respondent was that upon payment of the purchase price it was entitled to a deed containing a renunciation of dower on the part of appellant's wife, and that if by reason of the refusal of appellant's wife to renounce dower such a deed was not obtainable, the respondent was entitled to obtain the deed upon tendering to the appellant five-sixths of the amount of the purchase price, and to give for the remaining sixth of the purchase price a mortgage on the property, payable to the appellant or his wife upon the contingencies hereinafter more particularly stated, said mortgage to draw interest at 6% per annum.

The appellant, on the other hand, took the position that he was entitled to the payment of the full purchase price upon tender of his deed without the renunciation of dower on the part of his wife, and that the rejection by the respondent of a tender of such deed amounted to a breach of the contractual relationship between the parties and a nullification of the rights of the respondent under the decree for specific performance hereinabove referred to.The matter came before the Circuit Judge upon the notices, petition and affidavits above referred to, and that Court granted a decree, the decretal portion of which (on the point now under discussion) is as follows:

"Ordered, that the defendant be, and he is hereby, directed to make and execute his deed in usual form in favor of the Plaintiff covering the premises described in the complaint within ten (10) days from notice of the filing of this Order, whether by personal service or service by mail, as agreed upon at the hearing referred to, upon the payment to him of five-sixths of the purchase price less Ten ($10.00) Dollars, the amount heretofore paid him, and upon delivery to him of a bond in writing executed by the Plaintiff in the sum of Sixteen Hundred and Sixty-six & 67/100 ($1666.67) Dollars, secured by mortgage of the premises in question, payable to the Defendant and conditioned to pay to the Defendant interest thereon at the rate of six per cent per annum on said sum, payable annually, so long as Defendant's wife lives; and upon her death, while the defendant still lives, that it will pay the said sum to the Defendant.

And further, that in the event the said wife survives the Defendant, the Plaintiff will, upon death of Defendant, pay the said sum to his wife with any accrued interest; otherwise, said bond to be in usual form."

The appeal is from this order.

The appellant, in a brief of sixty-three pages, covering thirteen exceptions and purporting to state fifteen "questions involved," raises issues which have already been conclusively disposed of on the first appeal, and encompasses critical remarks, some direct and some by way of implication, about the rulings heretofore made by the Circuit Judge and by this Court in the present litigation.We do not deem it necessary to advert further to these matters except to the extent of suggesting that the prolixity and length of appellant's brief are attributable in considerable measure to such matters.The rules of this Court do not encompass any specific restrictions on the length of a brief, except to the extent of requiring that the statement of the "questions involved *** should never exceed one page, unless the questions involved absolutely require it ***"(Rule 8,Sec. 2); even this rule has been violated to the extent of using three pages to state the "questions involved."A number of the questions so stated seek to reopen matters already concluded by our opinion on the first appeal.

The principal question involved in this appeal is the right of respondent to have the decree for specific performance made effective as against the inchoate dower right of appellant's wife, and if such right exists, to determine the means by which a court of equity may give the requisite relief.

These problems, it must be recognized, arise in an action for specific performance to which the wife of the owner of the property was not a party, and in which no effort has been made to bring her into the cause even at this stage of the case.

We reject as utterly untenable the argument of appellant that constitutional issues preclude the Courts of this State from giving effect to a decree for specific performance, by making proper provision to protect the vendee against future litigation on the part of a grantor's wife who refuses to renounce dower.The age of appellant's wife is in the record.Long before her marriage and indeed many decades before she was born, it was an established rule of property in this State that the dower right of the wife can be vested in the purchaser of real estate from the husband by judicial decree, upon the making of stated provisions for the payment to her of the value of her dower right in the event that she outlives her husband.

The dower right in South Carolina is a creature of the common law, recognized however by numerous statutory provisions relating to the same.See for exampleCode 1942, Sec. 8578 et seq.The decisions of this Court giving effect to the dower right and providing for its involuntary relinquishment in cases of the present character are an integral part of the law defining and protecting the dower right, so that when the dower right of the appellant's wife arose out of the marriage relationship of the parties, it was a right that had already been well defined by law.Wright v. Jennings, 1829, 1 Bailey 277;Stewart v. Pearson,1872, 4 S.C. 4;Payne v. Melton,1904, 69 S.C. 370, 48 S.E. 277;Wannamaker v. Brown,1907, 77 S.C. 64, 57 S.E. 665;Brown v. Brown,1913, 94 S.C. 492, 78 S.E. 447;Armstrong v. Henson,1927, 139 S.C. 156, 137 S.E. 439;Ladshaw v. Drake, 1937, 183 S.C. 536, 191 S.E. 713, 716.

There is accordingly no juridical basis upon which to contend, as the appellant does here, that to take away the inchoate dower right of appellant's wife in the present case, so as to give effect to the decree for specific performance heretofore granted, upon terms that will assure her full compensation in accordance with the applicable decisions of this Court, will deprive either her or her husband of property without due process of law.

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