98 S.E. 135 | S.C. | 1919
January 27, 1919. The opinion of the Court was delivered by This is an action for damages for the failure of the defendants to perform on their part the following contract:
"State of South Carolina, County of Fairfield. This indenture made this the 14th of July, A.D. 1917, by and between C.E. Strange and Louise Strange and Thomas A. Fairey, witnesseth: That the said C.E. Strange and Louise Strange hereby agree to sell unto the said Thomas A. Fairey: `All that certain tract of land lying, being and situate in the county of Fairfield and State aforesaid, containing three hundred and ninety acres, more or less, situate about two miles south of Winnsboro, bounded by lands of Winnsboro Mills, J.G. McCants, W.L. Kirkpatrick, Joe Davis and right of way of Southern Railway Company, being the Rabb tract and McCants tract.'
"And the said Thomas A. Fairey agrees to pay for the said land twenty-three thousand four hundred dollars on the 10th day of December next.
"The said C.E. Strange and Louise Strange hereby reserve the right of possession of said land until the 10th day of December next and all crops on said tract of land for the current year to belong to the said C.E. Strange and Louise Strange, and the said sellers are also to have the right to use and the possession of the ginnery until the 30th day of December next.
"Upon the payment of the purchase money a good and sufficient deed of conveyance to be made and delivered to said tract of land.
"It is further agreed that in the event of the destruction of any building insured, then any amount collected on the policy of insurance by the sellers shall be deducted from the purchase money hereinbefore mentioned.
"And we hereby bind ourselves, our heirs, executors and administrators by these presents. Signed, sealed and delivered *160 in the presence of: W.D. Douglas, S.D. Ellison. Louise Strange, C.E. Strange, Thomas A. Fairey."
The answer of the defendants is as follows:
"The defendants above named, by W.D. Douglas and G. W. Ragsdale, their attorneys, answering the complaint herein, for a first defense:
"(1) Deny each and every allegation therein contained, except as may be hereinafter specifically admitted or qualified.
"(2) The defendants admit that they did sign the instrument of writing which is annexed as an exhibit to the plaintiff's complaint, but they allege that as to the defendant, Louise Strange, she did not sign the same voluntarily and willingly, but, on the contrary, was unduly urged to do so, after she had repeatedly stated her unwillingness to sign.
"(3) Further answering the said complaint, the defendants allege that it was distinctly understood by and between the plaintiff and the defendants, at the time of the signing of the said writing and before it was signed, that the price of the said lands to be paid to the defendants by the plaintiff was sixty ($60.00) dollars per acre, and that as to the McCants tract, that the defendants were not the exclusive owners thereof, but, on the contrary, that the minor children of the defendants were seized and possessed of a remainder in the said tract, which was entirely beyond control of the defendants and which could only be conveyed to the plaintiff by the direction and approval of the Court upon showing first made, that such conveyance would be advantageous to said minors.
"(4) That after signing the said writing annexed to said complaint and after full consideration, the defendants became convinced that the interests of their minor children would be greatly prejudiced by the terms, conditions, and stipulations contained in the said agreement, and thereupon at once notified the plaintiff that while they were ready and *161 willing to carry out the same, in so far as their personal interests was concerned, that they had been advised by counsel to take no steps, so far as the interests of their said minor children should be involved, which would result to the prejudice of the rights and interests of said minors.
"(5) That prior to the commencement of this action the defendants have offered to convey to the plaintiff, pursuant to the said writing as above stated, all right, title, and interest of the defendants in the premises described in said writing and in the complaint, but, upon learning that a conveyance of the interests of the minor children of the defendants pursuant to the said agreement would certainly result to the great prejudice of their interests, defendants notified plaintiff that the said agreement must be construed to relate only to such interests as defendants possessed in the said premises and as plaintiff well knew at all times was the limit of their right to convey.
"(6) That the defendants have at all times been willing and ready to convey to the plaintiff the tract which is referred to in the said agreement as the `Rabb tract,' which is owned exclusively by the defendants, or to convey all such interests as they own in both of said tracts, but the defendants' offer to so convey have been peremptorily rejected and declined by the plaintiff, who has made the unreasonable demand of the defendants that they proceed to obtain an order of Court requiring the conveyance to him under the power and authority of this Court of all the interests of the minor children of the defendants in the `McCants tract,' which the defendants repeat would be to order the sacrifice of said interests, and defendants specifically deny that they have refused to carry out or have breached any agreement which was made by or between them and the plaintiff.
"Wherefore, the defendants demand judgment that the complaint be dismissed with costs."
The plaintiff construed this to be an offer of the defendants to convey the Rabb tract alone. The case was put on *162 Calendar No. 1 for trial by a jury. When the case was called for trial, the plaintiff submitted an offer to accept a conveyance of the Rabb tract, at a proportionate price, in full settlement of the case, and moved for judgment on the pleadings. The defendant disclaimed that construction of their answer, but the trial Judge gave judgment which directed a conveyance of the Rabb tract. From this judgment the defendants appealed.
The Courts have no power to make contracts for people and then require them to perform them. They can only require parties to contracts to specifically perform the contracts they themselves make. This is fundamental law, and no authority is needed for it.
1. The first error is to be found in that construction of the contract that makes it a contract to convey two tracts of land.
It is a contract to convey one tract composed formerly of two tracts. The names of the former tracts are given as a part of the description. The acreage is given as a whole, and the boundaries are given as a whole. It is manifest that the subject of the contract is all the land included within those boundaries. The contract made the land one tract, and by the one tract the rights of the parties must stand or fall. The pleadings show that the plaintiff was notified that the contract could not be performed, and after that the plaintiff brought his action sounding in damages for its breach.
2. This would end the case for specific performance, unless the defendants, by their answer, made a new offer to sell the Rabb tract alone. The plaintiff took that view of it, and the trial Judge sustained their view. In this we think they were in error. The first part of paragraph 6, taken by itself, does look that way; but when the answer is taken as a whole and construed liberally, as required by the Code of Procedure, it appears that the statement *163 was intended in mitigation of damages, if any, and not as an offer to compromise of a new contract.
The judgment is reversed.
MESSRS. JUSTICES HYDRICK, WATTS and GAGE concur.
MR. CHIEF JUSTICE GARY did not sit.
