| S.C. | Mar 1, 1878
The opinion of the Court was delivered by
The proposition involved in the first exception to the decree is one of law — that the contract being by parol is void under the Statute of Frauds. Unless the case made is one of part performance such as to authorize a Court of equity to decree specific performance, the action must fail on the ground just stated. The plaintiff, however, shows that the defendant took possession of the land sold under the contract of sale.
The second exception involves the proposition that such possession by the vendee was “ temporary and not such as would take the case without the Statute of Frauds.” This is a question of fact that has been determined in favor of the plaintiff, and we cannot say that it is without evidence to support it, or that there is testimony of overbearing weight to contradict it. It must, therefore, stand as the proper determination of such questions of fact. It is, therefore, a case of part performance of a parol contract for the sale of lands by the transfer of possession of the land bargained to the vendee under the agreement of sale, and in such cases it is the
In Thompson vs. Scott, (1 McC., 33,) the essentials of a case for specific performance of a parol contract for the sale of lands on the ground of part performance are stated by Nott, J., as' follows : 1st. That it must be clearly shown what the agreement was. 2d. That it has been partly carried into execution on one side with the approbation of the other; and, 3d. That the party i who comes to compel a performance must show that he has performed on his part and that he has been and still is able to perform his part of the contract. The terms of the contract are definite in the present case and distinctly proved. It has been carried into part performance by the mutual act of the parties tendering and accepting possession. It remains to inquire whether the remaining requisite of a case of this character is present.
The next exception advances the proposition that time was of the essence of the contract and that performance cannot be decreed now. No time was definitely fixed by- the agreement for the delivery of title, but it is inferable, from the fact that the time of final payment was fixed, that the title was to be completed before that time. If delay has occurred it must be ascribed to the default of the defendant, who refused to take title and complete the purchase while the contract was still executing. The terms of the refusal warrant the conclusion that the defendant would not have completed the purchase had the title of plaintiff appeared to be perfect. After the refusal of the defendant the plaintiff was not bound to proceed to put his title in a condition, by paying off encumbrances, to be available to the defendant. He had a right to wait until he was sure of some means of enforcing his contract before reducing the encumbrances. If delay occurred it was attributable to the fault of the defendant. ■ The contract was made in January, 1875, the final payment was to be made in January, 1876, and the action was commenced in September, 1875. No unreasonable delay in bringing suit can be charged to the plaintiff.
In Prothro vs. Smith, (6 Rich. Eq., 324,) Chancellor Wardlaw says: “In this Court time is not usually of the essence of the contract, although it may be made so by the express stipulations of the
The cases in which the complainant has been held prejudiced by delay in bringing his suit are considered in the case just cited, which afford no warrant for so stringent a rule as that insisted upon by the appellant. The same general views were expressed by this Court in Lesesne vs. Witte, (5 S. C., 462,) as it regards the effect of reasonable delay in the commencement of the suit. — See Dow vs. Gibbs, Bail., 363. The plaintiff is not chargeable with unreasonable delay, nor does it appear that he has failed to comply with any stipulations as to time contained in the contract. The defendant being in default was not in a position to fix a time for performance, nor does he appear to have done so, but, on the contrary, must be regarded as having refused absolutely to complete the purchase, although the plaintiff might in due time tender him a good title discharged from all encumbrances other than those excepted by the contract.
The fifth exception, to the effect that the circuit decree makes a new contract between the parties, is without force. The circuit decree properly embodies the terms of the contract, having regard to the fact that the whole purchase money had become due at the date of the decree, and then proceeds to enforce these terms, and provides that in the event of the failure of the defendant to pay the purchase money the land should be sold for its payment, thus enforcing by way of alternate relief the lien of a vendor of lands having title against a vendee in possession for the payment of the purchase money.
The sixth exception affirms that the plaintiff has not actually perfected his title. Two questions are involved in this exception, one affecting the plaintiff’s title, properly considered, and the other relating to alleged encumbrances. The last named has been disposed of by the decree, mainly as a question of fact, and no ground is presented for disturbing its conclusions. The first named will be considered. As it regards the alleged defect of title, the facts are that plaintiff’s title is held under a deed witnessed by a single subscribing witness. In itself this deed is deficient in point of proof for want of two subscribing witnesses; but, inasmuch as a possession of upwards of ten years had been had under it, of an adverse char
No misrepresentation or concealment of the character alleged in the seventh and eighth exceptions were alleged in the defendant’s answer, or proved, consequently these exceptions must fail.
The ninth exception involves the proposition that in an action for specific performance it is not sufficient that the title of the plaintiff is made good after suit brought and before decree. No question of a defective title, as such, is presented by the present case, for the title of the plaintiff appears to have been perfect before the action commenced. The real objection is that the title was not marketable at the time of suit brought, by reason of encumbrances on the land not intended to be assumed by the vendee.
As has been already said, the plaintiff was not bound to remove such encumbrances until assured of an opportunity of completing the sale of the land. In point of fact the encumbrances were removed, with the exception of those that were to remain according to the contract of sale, before the Referee’s report.
The authorities warrant the conclusion that even had there been a defect of title that defect might have been cured at any time before decree. — Lesesne vs. Witte, 5 S. C., 462, and cases there cited.
The tenth exception alleges error in costs being allowed to the plaintiff. Had it appeared that the defendant had refused to perform his part of the contract solely on the ground that the title was not good and marketable, and had the action been commenced while the plaintiff’s title was subject to that defect, it is obvious that should the plaintiff, before decree, succeed in removing that
In the present case it appears that the defendant at the time of action commenced was unwilling to carry into effect the contract of sale, even had the plaintiff, at that time, been able to make a good and marketable title. The plaintiff was therefore compelled to resort to this action as the only means of enforcing his rights, and he was properly allowed his costs.
The eleventh and twelfth exceptions set forth matters entirely foreign to the matters at issue and need not be considered.
The appeal must be dismissed and the judgment below affirmed and the cause remanded for its enforcement.