Hudson v. Cozart
| Decision Date | 03 March 1920 |
| Docket Number | 61. |
| Citation | 102 S.E. 278,179 N.C. 247 |
| Parties | HUDSON v. COZART ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wilson County; Devin, Judge.
Action by W. C. Hudson against U. H. Cozart, W. P. Anderson, and others. From a judgment for plaintiff, the defendants named appeal. Reversed, and action dismissed as to such defendants.
An option to purchase land requiring the execution of a deed on request on a specified date and payment of the price on that date, and providing that it should be void if not exercised on or before such date, required an offer to perform and a tender of the purchase price within the time specified and at or before execution of the deed.
The action is to enforce the specific performance of a contract to convey a parcel or lot of land in the city of Wilson pursuant to an option to purchase the same, contained in a written agreement executed by defendants to the plaintiff.
On the hearing it was admitted that the said lot was owned by the five named defendants, the interest being as follows One-third by S.W. Smith; one-third by W. P. Anderson one-sixth by U. H. Cozart; and one-twelfth each by Eagles and Carr. It further appeared that the defendants had executed the written agreement, and that no deed for the lot had been made. The defendant S.W. Smith made no answer to the complaint of plaintiff, duly verified, and the bill was taken pro confesso as to him. The four other defendants having joined issue, there being no evidence of a personal tender of the purchase price within the time required by the option on defendants Eagles and Carr, the action, on motion, was dismissed as to these defendants, and, issues having been submitted as to the liability of U. H. Cozart and W. P Anderson, the jury rendered verdict as follows:
"(1) Did the defendants execute and deliver the contract as alleged in the complaint? Answer: Yes.
(2) Was the plaintiff at all times ready, able, and willing to comply with the provisions of the contract? Answer: Yes.
(3) Did the plaintiff tender performance of the contract prior to March 15, 1916, to the defendants Cozart and Anderson? Answer: Yes."
Judgment for specific performance as to these defendants, and, it appearing that said defendants are married men and that their wives had not signed the written agreement conferring the option, the decree provided for a proportionate abatement of the purchase price unless the wives of said defendants should voluntarily join in the execution of the deeds for the property. Defendants Anderson and Cozart, having duly excepted, appealed.
H. G. Connor, Jr., and Wm. A. Lucas, both of Wilson, for appellants.
F. S. Spruill, of Rocky Mount, and W. A. Finch, of Wilson, for appellee.
On the trial it appeared that the five defendants named, owning a lot in the city of Wilson, on the 31st of January, 1916, entered into a written agreement, under seal, conferring on the plaintiff an option to buy the designated parcel of land; the portions of the agreement more directly relevant to the inquiry being as follows:
"And the said parties of the first part, plaintiffs, hereby contract and agree to execute and deliver to the said party of the second part, his heirs and assigns, at or upon his request, on the 15th day of March, 1916, a good and sufficient deed for the said tracts or parcels of land described above, with full covenants and warranty: Provided and upon condition nevertheless that the said party of the second part shall well and truly pay to the parties of the first part, their heirs and assigns, in cash, the sum of $5,000 on the said day of March, 1916, in good and lawful money, and being in full payment as the entire purchase money for aforesaid described lots or parcels of land together with all appurtenances now situate on same.
It is understood and agreed by the parties to these presents that said sale is to be made at the option of the said party of the second part and to be exercised on or before the 15th day of March, 1916, and it is further agreed that, in case the said party of the second part does not demand of the parties of the first part the deeds herein provided for as herein agreed and tender payment as set forth above, on the 15th day of March, 1916, this agreement shall be null and void and the parties of the first part, their heirs and assigns, shall be at liberty to dispose of the said lots or parcels of land in such a manner as if this contract had never been made, and neither the parties of the first part nor the party of the second part shall have any claim whatsoever on the other in either law or equity.
It is also further agreed by that party of the second part that he will erect upon the property described above a redrying plant, said plant to be erected by the opening of the tobacco market in the fall of 1916, and at the time of delivering said deed or deeds, should this option of purchase be exercised by the party of the second part, upon request of the parties of the first part the party of the said part shall make such assurances in good faith that may be accepted by the parties of the first part as to the erection of the aforesaid redrying plant, that the deed or deeds may be properly delivered to the party of the second part, and the failure on the part of the party of the second part to make unto the parties of the first part the assurances as be reasonably required by them as to the use of the aforesaid lots or parcels of land will render this agreement null and void, neither party having any recourse at law or equity."
The plaintiff, a witness in his own behalf, testified further on the issues:
On this, the only oral evidence offered, the action having been dismissed as to Eagles and Carr, the jury rendered a verdict, as stated, against the defendants Cozart and Anderson, and the court gave judgment that these defendants convey their interests on payment of their proportion of the purchase price, subject to abatement for their wives' interest in the property, and a similar judgment was entered against the defendant Smith, who had failed to answer or in any way resist the recovery sought.
From a perusal of the agreement it appears that this was an option conferred upon the plaintiff requiring an offer to perform within the time, and in this instance to include a tender of the purchase money at or before the execution of the deed ( Timber Co. v. Wells, 171 N.C. 262, 88 S.E. 327; Ward v. Albertson, 165 N.C. 218, 81 S.E. 168; Winders v. Kenan, 161 N.C. 628, 77 S.E. 687; Hardy v. Ward, 150 N.C. 385, 64 S.E. 171; Trogden v. Williams, 144 N.C. 192, 56 S.E. 865, 10 L. R. A. [ N. S.] 867); and plaintiff was also, if requested thereto, to give satisfactory assurance as to a redrying plant which he was to build upon the property as a part of the consideration. Ordinarily tenants in common, merely from that relationship, are not authorized to make agreements or receive notices substantially affecting the estate or interest of each other in the common property, but where, as in this instance, such tenants have entered into a joint and binding agreement conferring a purchase option on a third person, such an instrument will constitute one the agent for the other for the purposes of a tender which will turn the agreement into a bilateral contract, and, in our opinion this is assuredly true in regard to an agreement of the kind presented here, which, from its language and purport, clearly contemplates an indivisible contract to be performed in its entirety. Not only...
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Miller v. Russell
...of its specific performance.’ ”Carr v. Good Shepherd Home, Inc., 269 N.C. 241, 243–44, 152 S.E.2d 85, 88 (1967) (quoting Hudson v. Cozart, 179 N.C. 247, 252, 102 S.E. 278, 281 (1920) (citation and quotation marks omitted)). Here, two of the plaintiffs, Sarah and Gregory Miller, were specifi......
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