Ward v. Albertson

• Decision Date: 26 March 1914
• Citation: 81 S.E. 168,165 N.C. 218
• Parties: WARD v. ALBERTSON ET AL.
• Court: North Carolina Supreme Court

81 S.E. 168

165 N.C. 218

WARD v. ALBERTSON ET AL.

Supreme Court of North Carolina

March 26, 1914

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 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 on purchase. That on 21st of November 1912, said Albertson sold and conveyed the timber referred to and described in the contract to the defendant the Hilton Lumber Company which said conveyance was duly filed for registration in Duplin county on 21st of November, 1912, and registered November 23, 1912. That, on November 24, 1912, said A. D. Ward, by letter, notified defendant Albertson that he would purchase the timber according to the terms of the option and on December 26th he tendered the $1,000 to Albertson in gold coin, which tender was refused, defendant notifying Ward that the option was not binding, and that he would not convey the timber. That on November 26th plaintiff, A. D. Ward, notified the defendant the Hilton Lumber Company of his decision to purchase the timber under the terms of the contract, and also of the tender made to Albertson; that he was ready and would continue in readiness to pay for the timber and demanded performance of contract made with Albertson. On December 27th defendant company, by letter, notified plaintiff, in effect, that they claimed ownership of the lumber, under their deed, and declined to comply with plaintiff's demands. It was further admitted that A. D. Ward has, at all times, been ready, able, and willing to pay the $1,000 and that no part of the timber has yet been cut.

There was judgment for specific performance, on payment of $1,000, etc. Defendant excepted and appealed.

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

Stevens & Beasley, of Warsaw, H. D. Williams, of Kenansville, and E. K. Bryan, of Wilmington, for appellants.

G. R. Ward, of Wallace, and J. A. Gavin, Jr., of Kenansville, for appellee.

HOKE J.

On the argument it was chiefly urged for error: (1) That the contract was not one coming within our registration laws, and, there being no evidence of notice ultra, at the time of its purchase, the Hilton Lumber Company is not bound. (2) That the consideration of $5 paid by plaintiff is not sufficient to justify or uphold the remedy by specific performance. (3) There is no evidence of any tender of performance within the specified time made to the defendant lumber company, but, in our opinion, on the facts in evidence, neither position may be allowed to affect plaintiff's recovery.

These contracts, by which one acquires, for limited period, the right to buy another's property, have a recognized place and fill an important purpose in our business life, and it is now very generally held, here and elsewhere, that, in proper instances, the remedy by specific performance is available to the holder. Winders v. Kenan, 161 N.C. 628, 77 S.E. 687; Gaylord v. McCoy, 158 N.C. 325, 74 S.E. 321; Bateman v. Hopkins, 157 N.C. 470, 73 S.E. 133, Ann. Cas. 1913C, 642; Timber Co. v. Wilson, 151 N.C. 154, 65 S.E. 932, 134 Am. St. Rep. 982; Hardy v. Ward, 150 N.C. 385, 64 S.E. 171; Watts v. Kellar, 56 F. 1, 5 C. C. A. 394; Ross v. Parks, 93 Ala. 153, 8 So. 368, 11 L. R. A. 148, 30 Am. St. Rep. 47; Ide v. Leisar, 10 Mont. 5, 24 P. 695, 24 Am. St. Rep. 17; Pomeroy on Specific Performance, § 168.

And, in reference to the status or obligation of the proposed vendor while it is frequently said and held that it constitutes only an offer to sell on his part, and does not amount to a contract to convey, this must be understood to refer to a complete or perfect contract to convey; for, when the agreement concerns real property, both in its terms and purpose, it amounts to conditional contract to sell, and, in its spirit and meaning, comes well within our statute of frauds and of our registration laws, giving priority of right to him who first registers his instrument. In Pomeroy on Contracts, § 169, the author, in speaking of options, said: "The...