*1 HODGE, Respondent, George v. A. Joseph Carrie S. Shea, Appellants. (2d) 82) E. (168 S.

Messrs, Cureton, of Spartanburg, Holcombe, Bomar & Appellants, for

Messrs. Edward C. Roberts and Geddes H. Martin, Columbia, Robinson, Jr., C. on the Re- Ralph Brief, spondent, *3 Holcombe, of Spartanburg,

Messrs. Curet.on, Bomar & Appellants, Reply, 14, 1969. May

Brailsford, Justice.

In this the circuit court decreed action equitable specific land, de- of a contract for the sale of and the performance is a physician, fendant has plaintiff appealed. and executed in his medical office on contract was prepared defendant had been plaintiff’s patient 1965. The August date, contract he was seventy- for a number of On the years. inebriate five was an years long standing, age, illnesses, chronic arterio- was afflicted by including grevious sclerosis, liver, neuritises, cirrhosis of the arthritis of the afflic- These and varicose veins spine hip legs. tions medication and and others constant frequent required him infirm of attention, body medical and rendered mind, con- not to although point incompetency tract. before and after

During period immediately August 19, 1965, Shea, defendant, A. was suffering George and was deal of his back and great having pain hip difficulty He was attended voiding. professionally home, at Dr. either at the Shea plaintiff, Joseph Hodge, the doctor’s office or in the at least once each day hospital 26, 1965, August except August through August 17. The contract was signed during morning August 19. One Dr. made on house calls was Hodge’s frequent the afternoon of that and Mr. Shea was admitted day, 21, where he remained until hospital August August

Mr. Shea was from his wife and lived alone. separated He calls, was for house dependent upon were needed from time to time. His with his relationship who sometimes him as a friend and physician, visited oc- him, casionally services for performed non-professional *4 closer than arises from of a and ordinarily patient phy- sician.

Mr. Shea owned valuable in and near the property City of However, in serious financial diffi- he was Spartanburg. 19, 1965, culties. For at least several years prior August he had been and about indifferent the man- irresponsible 1962, of his In a agement affairs. on North building Street was sold the Liberty by South Carolina Tax value, much less than its Commission, satisfy for inferably At the same assessment Mr. Shea. tax deficiency against time, income taxes were claims for Federal pending large 1964, of him, resulted in the May, filing against or more $250,000.00. a tax lien for some One judgments him, claims, on debatable were entered against apparently default. by

Mr. was indifferent toward these reverses Shea seemingly sale of the North Liberty and made no effort to the prevent or to redeem it after the sale. This was ac- Street property son-in-law, Ransdell, Jr., William G. by complished Carolina, Mrs. Ransdell. North and lawyer Raleigh, Mr. Mr. Ransdell also assumed the with responsibility, the Fed- Shea’s complete acquiescence, negotiating tax eral authorities the amount of the concerning obligation and in the after to raise funds to assessment satisfy trying the lien was efforts involved filed. These negotiations the carried estate, sale various of real which were parcels on with Mr. and consent. Mr. Shea Shea’s full knowledge “Buck”, he called his son-in- his full confidence placed law, and assumed no of his own. initiative home,

A 125 acre tract of land near adjacent Mr. Shea’s to land which was as residential being developed property, was one assets. most valuable and salable readily 1962, In of this land had developer contiguous expressed to Mr. an A firm Shea interest it at acre. per $1000.000' 1964, November, offer of this amount made in was on of his son-in-law refused the advice was worth at least acre. Nego- per $1500.00 tiations between the Mr. Ransdell commenced developer Shea, at that time and were in when Mr. at progress instance Mr. Ransdell of Dr. consulting without else, contract anyone signed August to purchase this contract Dr. claims right Under consideration choice acres of 125 acre tract for a twenty circuit court to be the calculated equivalent $361.72 contract date acre. The market value of the land per *5 606

has been fixed at an master unappealed finding acre. per $1200.00

In between Mr. 1966 Ransdel negotiations June resulted in the sale of 66.35 acres of the developer tract, 125 acre with as to re- an option arrangement mainder made reference to cloud (which appropriate created Dr. $99,520.00 Hodge’s claim) $1500.00 acre. This sale per was closed at the County Spartanburg House, Court others simultaneously two which Mr. Ransdell had with all interested or their negotiated, parties representatives present. purchase money, supplemented $85,000.00 borrow, which Mr. had Ransdell to arranged was used to the tax lien and discharge judgments against Mr. Shea.

The consideration was in the contract between expressed Dr. and Mr. Shea as Hodge follows:

“The purchase price being (Cadillac DeVille Coupe Dollars, & 6600) on the terms: Dr. following $4000.00 Jo- to seph to Mr. Hodge Shea a new give George $6600. DeVille coupe Cadillac which is to be in the registered name of Mr. A. Shea at no cost to him. George absolutely return, In will Shea Dr. to give Hodge Joe Cadillac DeVille and coupe shall transfer title of this vehicle to Dr. Further, Dr. Hodge. will to Mr. Joseph Hodge pay A. Shea the George balance of for the 20 acres $4000.00 of land described check, above to title subject less survey, taxes on of vehicle.” purchase

Dr. was fully aware of Mr. Shea’s financial trou- Hodge bles, the liens on his and his son-in-law’s efforts property in his behalf. He was also aware of his patient’s predilection for new he Cadillacs.1 was not to do so Although obligated until the liens, was cleared of which was not ac- until the Dr. June, hastened complished following DeVille and delivered 1965 Cadillac purchase Coupe purchase by Coupe figured A DeVille in a 1962 land new advantaged doctor. patient greatly it Mr. on after his from the hos- day discharge If he pital acted haste an effort August contract, what he must have realized was a fortify dubious he has so far succeeded. The of the circuit court’s ground *6 favorable decision was that Mr. Shea’s of the new acceptance Cadillac and his surrender of the old one to Dr. Hodge amounted ato confirmation binding of contract. We from the quote decree:

“The for the inadequate purchase involved price and clearly established. The as- convincingly close very sociation of and as defendant Shea doctor and plaintiff pa- tient, considered in the of the ill health and light infirmity Shea, of renders this transaction The master clearly suspect. found, however, expressly that there was no undue influence exercised by plaintiff. record does not contain clear any proof such; of as overreaching but defendant makes per- suasive that all of argument the circumstances considered in their totality refusal justify by the Court to decree speci- fic Were performance. it not for the fact that the defendant Shea some five days after the contract the new accepted automobile and voluntarily transferred intentionally older car to I plaintiff, be a different might disposed to ” ** * conclusion.

The court an interpreted affir report including mative finding transaction was not tainted by undue influence, but neither joined nor rejected such Instead, finding. the court made the negative finding that the “record does not contain clear any over proof * * as such reaching Actually, the master’s was finding also “I do not find negative. from the there testimony that was undue influence any exercised to obtain by plaintiff * * the agreement The difference is of im paramount case, because portance e., from the i. circumstances this consideration, gross the confidential rela inadequacy tionship physician between patient, inequality the parties from the resulting infirmity body patient’s mind, an arose that the doctor implication presumption

608 or over of his fraud patient had obtained the advantage to remove The burden upon reaching. fairness proof complete affirmative presumption con transaction, terms of the including proof Shea, his as and that understood tract were fully exercise of of a deliberate sent thereto was the product unfair any representation, uninfluenced by own judgment, and Sur 41 Am. Jur., Physicians or enticement. inducement 347, Bullard, 258 N. C. 196; Hewett v. 74, Sec. p. geons, 596, 411; v. 35 Utah Budge, Peterson 128 E. S. (2d) 460, Pownall, 84 Pa. 211; v. 335 102 P. Matthaei 932; 173, P. Nor Miller, v. 77 Okl. A. 444: Clinton Gleason, 538, 328; Butler v. Beall, v. 82 Miss. 34 So. flett West, v. 371; Cadwallader 101 N. E. Mass. Mo. 483. involved the

All of above decisions physician- cited *7 In the burden was upon each of them patient relationship. the trans- fairness of the to establish the physician complete In a benefit. the action in which obtained the physician case, tersely: Hewett the was stated supra, point ill chronically “Where treats a per- a physician regularly relationship a a confidential son over two years, period that financial established, dealings is a raising presumption at 128 E. 413. (2d) between them are fraudulent.” S. No the South Carolina case involving physician-patient However, or has been cited found us. relationship our numerous are the same as in rather applicable principles in other confidential relation desicions persons involving Wille, 413, See, 35 Wille v. 57 S. C. ships. example, Shuler, 817; 804; 1, E. E. v. 87 S. C. 68 Zeigler S. S. Devlin, 268, 71 E. Devlin v. 89 S. C. S. this court has sev-

Even absent a confidential relationship, Jewell, in v. eral times stated Allore approved principle 260, in- 24 or undue 506, U. S. L. Ed. that imposition 94 inferred from fluence will be upon grantor proof great weakness, to execute not mental amounting incapacity a deed, valid accompanied by considera- gross inadequacy Sweat, 112, 124, tion. See Owens v. 227 S. E. C. 86 S. 892, 886, decisions therein cited. (2d) In v. a Desaussure Butler Has great opinion by Judge kett, 4 Desaus. S. C. is found an (4 Eq.) (1816) exhaustive review authorities the issue bearing upon alone, “whether of the or (a) great inadequacy price coupled with circumstances, other does not furnish a ground infer, which the court is bound to was too bargain unconscientious to be a court of supported equity?” Desaus, cases, at 686. After this examination the decided court, the full concurrence of the Desaussure Judge stated:

“I consider the result of the of the cases to great body be, that wherever the court a sale of perceives has been made at a such as grossly inadequate price, would a mind, shock correct furnishes a inadequacy strong, and in conclusive, general there be presumption, though no fraud, direct proof that an undue has been advantage weakness, taken of the or the distress ignorance, necessity vendor; and this on the imposes purchaser necessity remove this presumption by violent clearest * * evidence conduct; of the fairness of his *. The relief * * * is extended weak, necessitous, to all who are or or * * not of their perfectly cognizant *. And an rights, swer of transaction, the defendant fraud denying conclusive; entitled to much though no means weight, but the Court relief gives counter strong testimony, *8 on the great intrinsic evidence of gross inadequacy, coupled with circumstances, other such weakness as or necessity the seller, confidence in the c. And the reposed buyer, & decided cases further shew that the hazard run the buyer of what he losing advances some does contingency, ** not the relief; prevent Court from 4 De giving saus, at 697-98.

The case is at hand attended by of con- gross inadequacy sideration, serious of the impairment grantor’s mentality confidential rela- disease, and a intemperance

from age, Has the strong between the grantee grantor. tionship com- from this unfairness arising of vitiating presumption the evidence? been overcome by bination of circumstances it not. The record devoid conclude that has We must reason, fair- a any suggesting compatible evidence ness, so a bar- assent to disadvantageous for Mr. Shea’s disparity not because the only gross gain. Disadvantageous value, but because the possi- between consideration the important that the sale would bility impede negotiations Unless his memory Ransdell was engaged. him, son-in-law to failed Mr. Shea knew that his expected as an sell for about acre the acre tract per $1500.00 to satisfy sufficient funds toward important raising step These tax and liens the Shea property. judgment against assent that Mr. Shea’s circumstances furnish evidence strong Randsell, contract, so to Mr. without much as notice was not the of an informed of deliberate exercise product this could Without that transaction judgment. suggesting be by past sustained as an act of generosity prompted favors, we not this out that Dr. does urge point Hodge Instead, view. he testified that the transaction was a “busi- ness deal” and that all that the land was he bargained pay worth at time. from his testimony, “(T)here Quoting was a tax lien on I it and when purchased property this was a I that I’d ever didn’t know speculative problem. I title to this and this had get gamble I take when for this This contention signed property.” if Dr. would have little to a court of even appeal equity defect, had incurred a risk of loss a title against fact, of the con- which, he was terms By protected. if tract, he lost his enormous could have only bargain liens had not been cleared. also discloses an unfair between disparity

The record and the written Hodge, oral as testified to agreement in his office. Dr. testified contract formulated had offered Mr. Shea of land he acres twenty that for

611 $10,000.00 $6,600.00 choice between Deville Coupe Cadillac $4,000.00; and that plus accepted alternative Dr. of statement the terms on proposal. Hodge’s which he offered the land several times purchase appears in the record material testi- without variation. There is no that had further as to mony parties discussion any contract, terms. The written in Dr. as formulated Hodge’s office,with no third Dr. nurse present except Hodge’s party or secretary, conferred bene- Dr. the additional upon Hodge of, fit of Mr. Shea’s 1964 which he after Cadillac, disposed for a net of repairs, There no gain attempt was $2200.00. this material explain variation from the previously terms and no proposed accepted, windfall testimony cash offer was even original discussed 22% parties.

There was also a between the terms of the disparity writing performance undertaken Dr. Hodge. For Cadillac, acres of land and Mr. Shea’s twenty Dr. Hodge “a new promised DeYille Cadillac” and coupe $6600 $4,000.00. The list the 1965 Cadillac Dr. price However, delivered to Mr. Shea was $6,434.43. it was purchased from the $1,000.00 dealer for less than this amount, and in 1965, this automobile was August, type readily available at the lower from authorized Ca- figure dillac dealers. had

Although offered the equivalent land, acre for the the variations in per the formu- $530.00 lation of the contract and its reduced performance acre per court, as calculated the circuit to the price, $361.72, equivalent at which figure specific performance was decreed. case, on this it

Finally, phase of would be naive not was recognize 1965 Cadillac used to entice a old man highly susceptible into a hard trade. was Mr. Shea Cadillacs, fond of fatuously new was in- but apparently capable care one. His own model taking had (he also had a 1963 had been abused. Accord- model) badly * ** sev- it “smelled like a toilet. had to Dr. Hodge,

ing holes in the and the car fenders bullet top eral bumped, *10 ** is no It foul car." There *. was a rather just filthy connection Dr. had any the record that Hodge suggestion of Mr. the condition with an business. Knowing automobile car, and the activities Shea’s his financial predicament auto- behalf, son-in-law in his Dr. used new Hodge to to sell. Mr. Shea mobile as a means of influencing agree Mr. Shea’s The means was calculated to becloud judgment, circumstances, and, its unfair. under the use was erred in think court giving controlling We automobiles, five days to the exchange weight as an “affirmance been signed, after the contract had attended This exchange the contract.” or ratification of execution as affected the incidents by the same inequitable its un to ameliorate tendency and had no the contract sub fact, an automobile of In delivered fairness. there he contracted to provide, less value than stantially this was aware of discrepancy no evidence that Mr. Shea is willing he it. The answer asserts Shea’s when accepted between two automo ness the difference value pay action, relief in biles, for that may Dr. Hodge apply shows that has been said clearly if he be so advised. What remedy specific perform is to the he not entitled equitable is a contract that ance, is to enforce only available Smith, 105 S. C. “fair, v. just McChesney equitable.” 349, 639; Anness, 41 C. 171, v. S. 89 S. E. Holley S. E. 646. view, mere that, to. majority

It is said according is for refusing of consideration not ground inadequacy be a “in order to performance; the remedy specific other defense, either be accompanied must the inadequacy fraud.” incidents, as show be so gross inequitable must Pomeroy’s Equity Jurisprudence, (5th 1941) III Ed. Vol 926, Sec. p. able opinion found in the

A review authorities Small, v. Strob. Caldwell in Gasque Chancellor stated that the rule indicates S. C. (21 Eq.) is a from established departure formerly principle. Pomeroy in Gas- We refrain from from scholarly opinion quoting overruled, which, has never been que, although apparently, dicta in from it. may departure some later decisions suggest us, decide, If is still law which we need not Gasque good it is certain that Dr. should be denied per- specific alone, if there formance this case for even inadequacy course, no other Of under the incidents. were inequitable facts here available would not be remedy appearing, even under what rule. .refers Pomeroy majority meritorious and the departures appeal clearly in the pre the rules of court appellant inadvertent, of it were more of form

paration entirely substance, than and did not either court or prejudice *11 We, therefore, counsel in the issues raised. understanding deny motion dismiss respondent’s to the appeal.

Reversed and remanded.

Moss, C. J., Lewis concur. Bussey, JJ., : Littlejohn, (dissents) J.

I dissent respectfully and would affirm the order of Judge Weatherford.

The of a is ordering specific performance contract matter. discretionary Here we have a of both the finding Master had the benefit of Equity (who the wit- observing nesses) Circuit Court that should specificperformance be directed. Their concurrent en- and conclusions are finding titled to much The the lower court is weight. amply ruling supported by evidence. record, conclusion is based

My on the entire there but are a few facts which to mind an undisputed my affir- compel 26, 1965, mance the lower court. On several August days after the contract was Mr. a new Shea signed, accepted land, Cadillac in for executed part payment proper to Dr. instruments old Cadillac. Three conveying later, 19, 1965, when the summons months November served, Mr. in the was riding in this suit was Shea (only) Cadillac. he to a deed refused sign presented

In the of 1966 Spring but stated for Dr. R. Turner Hodge, by Attorney James lien ’til he this tax got he it after sign “that want didn’t it.” and then he’d sign out of the way 12, 1966, filed on September When complaint Mr. the contract was signed, thirteen months after some in the Cadillac. was still riding Shea him this filed an answer for It was not until counsel for as a reason fail- defenses any that he asserted suit the contract. ing comply the inference that as is susceptible The evidence just as it that out the contract to carry was reluctant He at- affairs properly. of managing he was incapable after the before and just matters business tended to other contract. of this date unsettled. So far the matter leaves majority opinion has offered return shows, no time anyone at the record the same. The an- for reimburse Dr.

the Cadillac to make an he is ad- willing that 1967 says March swer relief asks only but prayer justment, be dismissed. complaint