103 S.E. 553 | S.C. | 1920
Lead Opinion
June 28, 1920. The opinion of the Court was delivered by I dissent to the opinion of the Chief Justice.* This being an action for specific performance, it is within the discretion of the Court whether it will decree it or not. The facts in the case are not such as will appeal to a Court of justice and good conscience that a decree should be made. Either party could breach the contract or option for sale if they saw proper to do so. I do not know of any law to prevent any person breaking a contract. When they do so *251 they must respond in damages in so doing, if the aggrieved party sustains any. In the present case, if appellant broke his contract the respondent could sue him. Any damages he recovered, the appellant's claim of homestead would be good against, as the contract entered into is simply to convey a tract of land. It is not an alienation by deed or mortgage, but simply a contract to convey under certain conditions. Of course, if the Court is determined to decree specific performance then he will not have his plea of homestead, as made in this case, sustained.
The respondent did not enter into the contract to purchase a home, but the only inference from the evidence is that he was on the make. The special referee finds that the respondent has optioned the land off the last part of 1919 to Morrison for $1,900. He in turn has contracted to sell to O.C. Lyles. Whitten contracted to sell Schmid December 1, 1917. Schmid went into possession then, not as purchaser, but as a tenant, having given a rent sum to Whitten. So now we have, according to the finding of the master, three persons other than Whitten having some claim in the land. And if we are confronted with the same trouble about dower that Whitten and Schmid are having, between Schmid and Morrison, and Morrison and Lyles, we will have a nice mix-up. It shows the danger of "shoe-string title," and it is rule of absurdity if a Court of equity intends to decree specific performance in such cases, and lend their aid and assistance to enforcing such barefaced gambling and speculative contracts. One of the curses of the country at present is the gambling speculative craze, whereby a lot are out for easy money and a desire for quick riches.
There are a lot of good people engaged in the real estate business, legitimately buying and selling, but the case at bar presents no such features. I do not intend by my aid and assistance to encourage such wildcat, speculative craze, and *252 bring about disaster. We had a case where the original purchase price was $10,000, and by subsequent "shoe-string sales" the last purchaser agreed to give $45,000. The collapse came, and under foreclosure proceedings the property brought a little over $10,000. All persons who have the good of their community at heart deplore the loose way that these transactions are conducted, and want them done away with. Practically, no earnest money passed between appellant and respondent. Respondent does not claim to have put any valuable improvement on the land. He never offered to comply until he saw a profit in it, by option, to another.
If decree of specific performance is to be enforced, the Chief Justice is right in holding that what was said by parties was merged in the contract, but, at the same time, if it was an independent agreement that respondent was to pay the mortgage, then appellant was justified in breaching the contract. I am opposed to specific performance. Let the respondent sue on the law side for damages if he has sustained any. I know of no law whereby a married woman is required to renounce her dower. For these reasons I think the decree appealed from should be reversed.
A majority of the Court concurring that the judgment should be reversed, it is reversed.
MR. JUSTICE GAGE concurs.
Concurrence Opinion
I concur. I do not think a Court of equity should decree specific performance of contracts that are merely speculative.
Dissenting Opinion
The defendant appealed upon numerous exceptions, but it will not be necessary to consider them in detail. In the statement of the admitted facts, we find the following:
"Defendant testified that at the time the contract was drawn he told plaintiff that he (plaintiff) would have to *253 pay the mortgage; that he and plaintiff agreed not to mention mortgage in contract, and to keep same a secret."
This fact shows that the rights of the parties were to be determined in accordance with the written contract, and that, as the oral agreement was to be kept secret, it was not intended that it should be a part of the written agreement. It is provided in the contract that the defendant should make good and sufficient titles to the land. The meaning of these words is that the land should be free from incumbrances, which include mortgages and the inchoate right of dower. Therefore, the conclusions of his Honor, the Circuit Judge, are sustained in these respects.
The appellant further contends that the contract for the sale of the land was null and void by reason of the fact that it constitutes his homestead. It is doubtful whether such question is properly before the Court for consideration; but, waiving such question, the contention of the appellant cannot be sustained. Section 28, art. II, of the Constitution provides "that no waiver shall defeat the right of homestead before assignment, except it be by deed of conveyance, or by mortgage;" also "that after a homestead in lands has been set off and recorded the same shall not be waived by deed or conveyance, mortgage or otherwise, unless the same be executed both by husband and wife, if both be living." The homestead, however, had not been set off. The power of the head of the family to make a deed of conveyance includes the power to make a contract for the sale of the land, as the ultimate result contemplated is a deed of conveyance. For these reasons I dissent.
MR. JUSTICE HYDRICK concurs. *254
