*1 Bryant, 448, 186 City (1948); Greenville v. 257S. C. judgment Accordingly, the below is Affirmed. J., Bell, J., concur. C.
Sanders, McRacken, doing Jeremy Lee business under G. WILSON and Walter Associates, Respondents, Mary style Ann v. name and of Chester Street LANDSTROM, Appellant. (315 (2d) 130) E.S. Appeals Court of *2 Robert J. Brailsford, Columbia, Thomas and Daniel T. appellant. Smith-McRackan, Columbia,
Deena respondents. March 1984. Judge:
Bell, equity by purchasers This is an action of real estate to plaintiffs, Jeremy clear title. The G. Wilson and Walter Lee McRacken, doing Associates, business as Chester Street prayed Mary for a declaration that Ann Landstrom had con- veyed to them premises all of her interest in the Downing at 62 City Landstrom, Street in the of Columbia. the defendant and seller, payment counterclaimed for of the balance of the purchase price plus interest or rescission and restitution. The circuit court decreed that Chester Street Associates owns the property simple, fee to a held Land- strom and that asserting any Landstrom is barred from inter- property except est her extent of Relief *3 appeals. on the counterclaim was denied. Landstrom We affirm. substantially July, 1979,
The facts undisputed. are In Land- strom, who had from in moved South Carolina 1967and now California, in Downing lives listed her house at 62 Street listing agree- Columbia with a local real estate broker. ment right Landstrom reserved the to sell the house to the occupying purpose tenants then it. For this she contacted Harry Dent, employer her former in South Carolina. Dent agreed negotiate to with the tenants on her behalf. Pursuant arrangement, power to this Landstrom attorney executed a authorizing “upon Dent to sell house such terms and may power attorney conditions as he see fit.” The was probated. witnessed but not purchase
Landstrom’s tenants decided not to the house. However, the realtor obtained Chester Street Associates aas prospective purchaser. The realtor called in- Landstrom to form her of Chester Street Associates’ offer on the house. discussing by telephone Dent, After the matter with Land- sign him prepared by strom authorized to a contract of sale the realtor. 17,1979, September
On Dent executed a contract to sell the provided house to Chester Street Associates. The contract $33,000 purchase price paid a to be as earnest $500 money $22,000 paid upon be of a deed. following term also financing was contained the contract: agrees mortgage
Seller second at 8% five years 1, payment payable with ballon on October [sic] $10,500.00. in amount of signed After the was it Dent was forwarded to 1,1979. Closing Landstrom. was held on October Dent deliv- ered deed to Chester Street Associates and received Mortgage” return a document entitled “Second in- following provision: cluded This is a second and shall be and subor- any may Mortgagor dinate to first now subsequently or have execute. placed
No other property was on the at time of closing. closing
When papers Landstrom received the she consulted attorney in learning an California about After mortgage might that her to a subordinated future mort- gage placed property, on the became she concerned about sufficiency security. destroyed original of her She then attorney, refusing probated to have it so Chester Street Associates it. could record This action followed.' equity,
At a reference before the master in Landstrom presented testimony except deposition. no her own The mas- confirming ter recommended order an Chester Street Associ- He ates’ title. found no evidence that Chester Street Associ- faith, finding ates acted bad took no which Landstrom exception. exceptions adopted With minor the circuit court findings master’s fact and conclusions of law. The court *4 its confirming entered order title Chester Street Associates barring any except and claim of Landstrom of extent her mortgage.” “second appeal questions
Landstrom’s raises review: three our (1). the mortgage” did of the con- so-called “second Associates; (2) a stitute breach of contract Chester Street authority, apparent, did Dent have actual or the mortgage” “second on Landstrom’s behalf and to deliver her exchange it; (3) deed and are Chester Street Associates from barred relief the of doctrine “unclean hands.” 264
I. acting scope If the of his Dent was within mortgage” closing, accepted when he the “second at it can claim no breach of con seems clear Landstrom accepted and at clos tract. The deed and delivered contract, bargain ing, prior represented not the the final through parties. Having accepted her at rely prior torney, on the terms of a Landstrom cannot now executory applicable The rule has contract as to the fully expounded by Supreme in the been our Court case Railway Joyce, Co.v. 231 S.C. Charleston & Western Carolina 493, (1957): (2d) E. 187 99 S. merger upon privilege, is founded doctrine parties always possess, changing their contract performance.
obligations by agreements prior to further execution, delivery, acceptance varying and of deed of the antecedent contract indicates an from terms contract, original generally amendment of the rights parties expressions are fixed their as * * * * in the deed. contained [Citations omitted.] Where there is no mistake or fraud a deed executed making executory subsequently to the of an contract for generally regarded evi- the sale of land is as conclusive previous executory con- dence of a modification subsequent making A executed of an tract. deed supersedes executory for the of land sale contract____ 504-505, 99 (2d) (quoting approval 231 S.C. at at 193 Snyder Roberts, 865, (2d) (2d) P. 348 from v. Wash. Jur., Purchaser, Am. (1955), and from 55 Vendor and Para. 327). Flynt; applies mortgages.
The same rule
Jordan v.
359, 240
(1977)(plurality opinion);
S. E.
240Ga.
Turley,
(1918);
M.
174 P.
v.
24 N.
Norment
Shannon,
Timms v.
II. This leads to argument: Landstrom’s second that there was no effective of the deed and because Dent apparent authority had no actual or Her power contention is refuted the terms of the of at- torney, states, pertinent part: which I, Mary Landstrom,...
... Ann appoint Harry Dent, my true attorney power and lawful authority: full and sell, bargain, convey
1. To and deliver to whomever he may fit, upon see may such terms and conditions as he see fit, my place Downing Street, Columbia, home located at 62 Carolina, South general any and in to take action what- regard soever in property myself take; to said I could and hereby I expressly
5. do powers declare that the herein granted attorney to aforesaid shall not be construed as limited to those specifically matters hereinabove set forth but rather shall broadly be construed to include and em- power brace full and unlimited and to do and perform my my place on behalf and and stead and with equal validity any things and all I lawful acts or which could if personally present, hereby do ratifying confirming my attorney do, whatsoever may said shall do and virtue hereof, concerning my property the sale and transfer of Downing Street, Columbia, located at 62 South Carolina. Attorney Landstrom concedes the was broad. She argues, however, long that as as Chester Street Associates acting good they right rely upon “were not faith had no authority, regardless his of the breadth of the terms [Dent’s] Attorney.” support position, the Power of of this Land- Corpus strom cites a standing section of Juris Secundum proposition party may principal that a third be liable to a See, C.J.S.,Agency participating agent. the fraud of his alleged proved § 456 Since Landstron neither nor fraud part Associates, argu- on the of Dent or Street Chester *6 suggestion ment does not avail her. Her that Chester Street acting good in Associates were not faith is likewise untenable finding judge in view of the of the master and the circuit both that there was no bad faith involved. dissenting opinion problem by seeks to circumvent this
fashioning theory disregarding a different Dent’s broad authority attorney. under the The dissent concludes Dent had no a modification of the mort- gage terms because the contract of sale contained standard merger stating agreement, form clause “... there is no other otherwise, modifying oral or the terms hereunder.” Reliance language misplaced. on this is merger expresses
A parties clause the intention of the writing complete integration to treat the as a of their agreement.Pasquale FoodCo., v. L&H Airmotive, Inc. Inc., denied, 127, 283 cert. App. (2d) (1973), 51 Ala. So. 438 291 795, 283 (2d) (1973); Ala. So. 448 4 § Williston On Contracts 633 (3rd 1961). completely integrated agree ed. The terms of a by parol ment cannot be varied or contradicted evidence of prior contemporaneous agreements or not included Hyman, Armour Fertilizer Worksv. writing. 375, 113 120 S. C. Beckly, M’Dowall v. (1922); E. (2 Mill) S. 330 9 S.C.L. 265 settled, however, (1818). apply It is well that this rule does not County subsequent agreement. Koth v. modifications of the Jasper County, Board Education 448, 140 141 S. C. S. E. (1927). integrated agreement may always An 99 be modified. subsequent and, In this case the was to the contract therefore, merger was not affected clause.
III. Finally, Landstrom raises the defense of “unclean precludes hands.” doctrine of “unclean hands” plaintiff recovering equity unfairly if he from acted litigation prejudice in a matter that is to the City Spartanburg, of the defendant. Arnold v. 523, 201 S. C. (2d) (1943). judges 23 S. this case two found there was inequitable no bad faith or conduct Chester Street Associ- finding given the lack of clear by We are bound ates. Guaranty parte contrary. 'Ex evidence the record (2d) (1970). Co., 177 E. 255 S. C. Bank and Trust has Furthermore, how Landstrom it is difficult to see Street prejudiced. reveals that Chester been record prop- mortgage on the given no other Associates have Thus, language the sales contract or erty. regardless of the only mortgage mortgage,” Landstrom holds the “second security threatened interest is not premises. Her on nothing in Moreover, existing mortgage. there is another destroyed in security will proving her interest record Indeed, although we not decide the issue future. do agreement case, a valid it is not at all clear that subordination See, e.g., purchasers. between Landstrom and exists 769, 422 578, 55 (2d) Handy Gordon, Rptr. P. v. 65 Cal. Cal. actually transpired, Conceivably, she is as events security position respect to her than she in a better preju terms of the contract. Since have been under the would *7 necessary of the “unclean is a element dice to the defendant defense, relief on the facts the doctrine cannot bar hands” us. before stated, judgment circuit court is the of the
For the reasons Affirmed. J.,C. concurs.
Sanders, J., dissents.
Gardner, Judge, dissenting: Gardner, majority opinion the sim- misconstrue My brethren of major pleadings of this case and ple issues made appeal. raised this issue appeal conten- major of this is Mrs. Landstrom’s issue sale a of the contract of between
tion that there was breach (CSA), upon which CSA Associates her and Chester Street sued. merger, majority opinion confuses the law of contract, with the issue to an earlier
presupposes a novation spe- i.e., of a complaint, the enforcement CSA’s presented incorporated complaint. CSA asks cific contract majority opinion as- contract and the to enforce one court supposed sumes the to enforce another support of CSA’s case.1 (1) complaint alleges that in reliance on the
CSA’s Dent, attorney, attorney in fact for Mrs. Land- CSA and as strom, subject property, entered into a contract sale for incorporated complaint, (3) (2) the contract is CSA has contract, (4) performed pursuant of its to the all duties pursuant to contract Dent executed the deed to CSA.The said complaint prays simple CSA vested with fee title. then that be allegations alleged 3 and 4 and Mrs. Landstrom denied breach mortgage delivered to of contract because of the terms of Dent. provided
The contract that Mrs. Landstrom was to receive a mortgage part purchase price. mortgage second as agree- delivered to Dent contained a blanket subordination (“this ment is a second be to and and shall any (sic) may mortgagor subordinate to first subsequently execute”). how I have or would hold that the agreement blanket subordination violates the terms of the contract, agree- which made no mention of a subordination prove performed CSA ment. it had all its duties failed and, contrary, affirmatively proved under the contract performed it had not the mort- its contractual duties because gage it delivered is inconsonant with the contract. CSA dis- proved its own case and defense established Mrs. Landstrom’s of breach of contract. observe, also,
I would that the Mrs. Landstrom purchase money mortgage. was to receive was to Mrs. Landstrom, contract, under the is entitled to a second mort gage money mortgage. purchase with all of the incidences major purchase money mortgage A incident of a is that (CSA case) nothing derogation mortgagor in this can do *8 Crystal purchase money mortgage. the Ice Co. lien of the Colonial, Columbia v. First 273 S. C. 257 S. is, reason, agreement blanket subordinate this reason, I inconsonant with the contract. For this additional mortgage delivery containing would that the the hold agreement blanket subordination constitutes a breach of con tract and also a failure of CSA to establish its case. 1, majority opinion. paragraph, section See First alleges the deed was deliv- significance, CSA that Of more said, How, now, pursuant to contract. Mrs. Landstrom ered to closing the transac- majority opinion hold that the the can by the law of pursuant to a new contract created tion was transaction was merger? Landstrom denied that the Mrs. by alleged CSA and pursuant to the contract sued on closed I there is an obvious breached the contract. would hold CSA disregard the simply This court should not breach of contract. totally “reaching up sky” new pleadings by into the to find to enforce. premised Had CSA not its entire case on the enforcement case, prove majority opinion the contract and failed to its understandable, still, think, I without would be more but would, majority opinion, I Dent merit. contra to the hold that par- delivered. The had no agreed by powers contract that Dent’s thereafter were ties majority limited to a conformance with the contract. The pertinent authority lim- opinion cites no that a once original power except by the ited2 can be revested with its does, indeed, defy (Mrs. Landstrom). proposition Such a donor logic. all reason and majority opinion disregards purposes pleading making procedure. Chaos must result from decision laid
and any purpose response the issues made other than a n writer, observation, simple this as a case. Aside from equity, injustice has done judge of would observe that an been calling equity high is to strive for to Mrs. Landstrom. submit, very justice; calling, I we miss the zenith of appealed by permitting the order to stand. mark judgment that I would reverse and remand with direction prejudice to entered Mrs. Landstrom without CSA’s simple subject property right to their fee title to establish the contract and of a the execution by simply agreeing that the blanket subor- they on or sued agreement present in the be deleted. dination (1) only agreement provides between the it was the The contract by it, (3) (2) enforced an parties, it could be were bound Dent and CSA specific performance. action for