Ward v. Albertson

• Citation: 81 S.E. 168, 165 N.C. 218
• Case Date: March 26, 1914
• Court: United States State Supreme Court of North Carolina

(165 N.C. 218)
81 S.E. 168

WARD.
v.
ALBERTSON et al.

Supreme Court of North Carolina.

March 26, 1914.

1. Specific Performance (§ 57*)—Contracts Enforceable.

An option contract to purchase timber within a specified time may be enforced by specific performance by the holder.

[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. § 178; Dec. Dig. § 57.*]

2. Logs and Loggino (§ 3*)—Standing Timber—-Contract to Convey—Priority—Option Contract.

An agreement to convey standing timber upon payment by the other party of a certain sum within a specified time amounts to a conditional contract of sale, and comes within the registration laws, giving priority of right to the person first registering his instrument.

[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]

3. Specific Performance (§ 49*)—Defenses-Inadequacy of Consideration.

As a rule, mere inadequacy of price will not of itself prevent specific performance of a contract to convey.

[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. §§ 140-151; Dec. Dig. § 49.*]

4. Specific Performance (§ 49*)—Contract to Convey — Sufficiency of Consideration.

There was a sufficient present consideration to make binding a contract made on November 4, 1912, in consideration of $5 then paid, to convey certain standing timber if the contract holder paid the owner $995 prior to January 1, 1913, in view of the short time the privilege of purchasing was held open.

[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. §§ 140-151; Dec. Dig. § 49.*]

5. Contracts (§ 279*)—Necessity.

Where a party to a contract has disabled himself from performing or denied the other party's right to performance, the other party need not make a formal tender of performance, provided he is ready and able to perform.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1233-1248; Dec. Dig. § 279.*]

Appeal from Superior Court, Duplin County; Whedbee, Judge.

Action for specific performance by A. D. Ward against John Albertson and another. From a decree for plaintiff, defendants appeal. Affirmed.

On the hearing, it was properly made to appear: That on November 14, 1912, plaintiff, for and in consideration of $5 then paid, obtained an agreement in writing from defendant, John Albertson, in terms as follows: "Received of A. D. Ward five dollars and I agree that if he pays me nine hundred and ninety five dollars prior to January 1, 1913, to convey to him all the timber and trees 12 inches in diameter and upward 12 inches above the ground with the usual rights of way and a term of ten years to remove the same situate on my Dixon Charity Fund tract of 119 acres and my E. A. Farrior tract of 12 acres situate in Kenansville township, Duplin county, North Carolina, adjoining

[81 S.E. 169]

each other and adjoining the lands of Kittie Farrior, Silas Barden, A. J. Pickett, R. B. Murray and others. Timber to be reserved for firewood and ordinary plantation purposes on this my home farm. Witness my hand and seal. John Albertson. [Seal.]" That on 20th of November, 1912, this paper, having been duly probated, was filed in office of register of deeds of Duplin county at 8:44 o'clock, and was duly registered on 21st of November, 1912. That on November 18, 1912, said Albertson, by telegram, withdrew or attempted to withdraw the offer of sale contained in said written agreement, and also wrote said Ward to that effect, inclosing Ward's check originally given, which said check was immediately returned by Ward, and Albertson having refused to take same out of office, the postmaster returned same to plaintiff, and offer of payment Is made in pleadings, etc., in addition to balance due...