Sandlin v. Weaver

83 S.E.2d 806 (1954) 240 N.C. 703

George W. SANDLIN and wife, Lula D. Sandlin,
v.
Madeline Mashburn Taylor WEAVER, Individually, and as Trustee for Mamie Sandlin Mashburn and Mamie Sandlin Mashburn.

No. 162.

Supreme Court of North Carolina.

October 13, 1954.

Proctor & Dameron, Marion, for plaintiffs-appellants.

Styles & Styles, Asheville, for defendants-appellees.

BOBBITT, Justice.

Plaintiffs contend that the two instruments, the deed and the contract, bearing date of 28 May, 1923, were executed at the same time. Defendants contend otherwise. "The date recited in a deed or other writing is at least prima facie evidence that the instrument was executed and delivered on such date." Stansbury on Evidence, sec. 229; Turlington v. Neighbors, 222 N.C. 694, 24 S.E.2d 648; Fortune v. Hunt, 149 N.C. 358, 63 S.E. 82; Kendrick v. Dellinger, 117 N.C. 491, 23 S.E. 438.

On motion for judgment of nonsuit, we consider and construe the two instruments together as parts of one transaction. Lewis v. Nunn, 180 N.C. 159, 104 S.E. 470; 12 Am.Jur., Contracts, sec. 246; 17 C.J.S., Contracts, § 298.

In the transaction of 28 May, 1923, it was the intent of the parties for plaintiffs to have the option to purchase the property at $5,000 from J. C. Sandlin and Susie Sandlin if they desired to sell in their lifetime or in the lifetime of the survivor. It is noteworthy that the right to purchase during this period was not absolute but exercisable only if J. C. Sandlin and Susie Sandlin, or the survivor, desired to sell. According to the contract, their right to purchase became absolute upon the death of J. C. Sandlin and Susie Sandlin.

It is stated in 55 Am.Jur., Vendor and Purchaser, sec. 27: "An option to purchase real property may be defined as a contract by which an owner of real property agrees with another person that the latter shall have the privilege of buying the property at a specified price within a specified time, or within a reasonable time in the future, and which imposes no obligation to purchase upon the person to whom it is given. Until the holder or owner of an option for the purchase of property exercises it, he has nothing but a mere right to acquire an interest, and has neither the ownership of nor any interest in the property itself."

Rights of plaintiffs under the contract constitute option rights. The contract is unilateral. Plaintiffs are not legally bound to purchase the property from anybody at any price at any time. The contract itself describes plaintiffs' rights as an option. While this is not conclusive, it is a circumstance bearing upon the intent of the parties. Lewis v. Nunn, supra.

Treated as an option, plaintiffs' rights as against defendants accrued upon the death of Susie Sandlin. No election to exercise their option was made until their tender of $2,500 on 16 October, 1953, more than eleven years after their rights accrued. "No time being specified within which the right to buy may be exercised, that it must be exercised within a reasonable time is not subject to controversy." Ritter v. Chandler, 214 N.C. 703, 200 S.E. 398. Considered in the light most favorable to plaintiffs, they had to exercise their option rights within a reasonable time. We agree with the court below. Plaintiffs waited too long. Nothing was done within a reasonable time from the death of J. C. Sandlin and Susie Sandlin to exercise their option rights. Ritter v. Chandler, supra; Francis v. Love, 56 N.C. 321.

We have considered the case upon the assumption that the plaintiffs' option to purchase was valid. Attention is directed to the fact that the plaintiffs' option rights run in favor of plaintiffs, and their heirs, and purport to be binding upon J. C. Sandlin and Susie Sandlin, and their heirs. We need not now decide whether the contract itself was void as being an unreasonable restraint upon alienation. Annotation, "Option to purchase as violation of rule against perpetuities or rule forbidding restraints on alienation." 162 A.L.R. 581 et seq.

Apparently, on 28 May, 1923, the parties had it in mind that J. C. Sandlin and Susie Sandlin would die intestate; and that in such case George W. Sandlin would inherit an undivided one-half interest in the property and would acquire the right to purchase at $2,500 the undivided one-half interest inherited by Mamie Mashburn. The fact that $2,500 (rather than $5,000) was to be paid to Mamie Mashburn, or her legal heirs, suggests that it was contemplated that she, upon the death of her parents, would own an undivided one-half interest. If this was the original intent, subsequent events indicate a radical departure therefrom. Presumably, J. C. Sandlin died intestate. Susie Sandlin died testate, devising this property in fee simple to or for the benefit of Mamie Mashburn. Other property was devised to George W. Sandlin. He was named as executor. Defendants went into possession of this property and have continued in possession thereof. If George W. Sandlin qualified as executor and accepted real and personal property of Susie Sandlin devised and bequeathed to him by her will, it would seem that he is estopped to assert any interest in property devised by Susie Sandlin in fee simple to Mamie Mashburn. As stated by Denny, J., in Wachovia Bank & Trust Co. v. Burrus, 230 N.C. 592, 55 S.E.2d 183, 184:

"The doctrine of election is based upon the principle that a devisee or donee cannot take benefits under a will and reject its adverse provisions. Lamb v. Lamb, 226 N.C. 662, 40 S.E.2d 29. The beneficiary under a will is not required to elect unless two benefits are presented which are inconsistent with each other. And when the beneficiary chooses to accept one of them such choice is tantamount to a rejection of the other. He will not be permitted to take under the will and against it. And where the devisor purports to devise property which belongs to the beneficiary, giving it to another, and also devises property of his own to the beneficiary, such beneficiary must make a choice between retaining his own property, which has been given to another, or take the property which has been given him under the terms of the will. By electing to take the gift from devisor's estate, he is estopped from claiming his own property. Elmore v. Byrd, 180 N.C. 120, 104 S.E. 162 [164]; 57 Am.Jur. 1060; 69 C.J. 1089."

Plaintiffs contend that the contract of 28 May, 1923, created a trust; that J. C. Sandlin and Susie Sandlin, during their lifetime, and defendants, after the death of the parents, were trustees for plaintiffs; and that there was no repudiation or disavowal of the trust until 16 October, 1953, when they rejected plaintiffs' tender of $2,500.00 and refused to convey the property to plaintiffs. While we cannot accept the interpretation that the contract created a trust, if this were true plaintiffs' action would be barred by the pleaded statutes of limitation. For if Susie Sandlin were a trustee, she repudiated and disavowed such trust unequivocally when she devised the property in fee simple to or for the benefit of Mamie Mashburn; and it must be presumed, nothing else appearing, that defendants, who derive their title through the Will, took possession and have continued possession according to their rights as defined in the Will, that is, as owners in fee simple. When a trustee by devise disposes of trust property in fee simple, free from and in contradiction of the terms of the trust, this is a repudiation or disavowal of the trust. Pownall v. Connell, 155 Kan. 128, 122 P.2d 730; Bend v. Marsh, 145 Neb. 780, 18 N.W.2d 106; Lassiter v. Bouche, Tex.Civ.App., 5 S.W.2d 831. The probate of the Will gave constructive notice of its provisions. Bend v. Marsh, supra. In appellants' brief, it is stated: "There is nothing in the record to show that the estate was finally settled and when the executor, the plaintiff, George W. Sandlin, filed his Final Report." Apparently, there is no question but that plaintiffs had actual as well as constructive notice of the provisions of the Will of Susie Sandlin. Indeed, the only inference to be drawn is that George W. Sandlin, the executor, offered it for probate. The result is that plaintiffs' action, if treated as an action for breach of trust, is barred by the statutes of limitation. Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83; Jarrett v. Green, 230 N.C. 104, 52 S.E.2d 223; G.S. §§ 1-52, 1-56.

For the reasons stated, the judgment of the lower court is affirmed.

Affirmed.