Yawkey v. Lowndes

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] June 7, 1929. The opinion of the Court was delivered by This is an action for the specific performance of an alleged contract involving certain land of the defendant, William Lowndes, on South Island, in Georgetown County, of this State. The action was commenced on the 10th day of December, 1926. The case was referred to Walter Hazard, Esq., as referee, to take the testimony and report the same back to the Court. The cause came on for hearing before Hon. William H. Grimball, Circuit Judge, at the regular November, 1927, term of the Court of Common Pleas for Georgetown County, upon the pleadings and testimony reported by the referee. On the 7th day of December, 1927, Judge Grimball filed his decree in favor of the plaintiff. From this decree, the defendant appeals to this Court upon the exceptions set out in the record, and which will be reported.

For an understanding of the issues presented, it is necessary to make a brief statement of the allegations contained in the pleadings, and of the testimony offered in support thereof.

The plaintiff, Thomas A. Yawkey, alleges in his complaint: That in May, 1926, the defendant, William Lowndes, employed H.L. Oliver, a real estate agent of Georgetown County, to sell for him certain real estate on South Island known as the Lowndes property; that on or about the 12th day of May, 1926, said defendant, through said agent, approached plaintiff, in writing, and offered to sell him said property at and for the price of $5,500; that as a result of said negotiations, the plaintiff agreed, in writing, to purchase from the defendant, and the defendant agreed, in writing, to sell to the plaintiff, all remaining Lowndes property on South Island at and for the price of $5,500; that on or about October 11, 1926, the defendant delivered to the plaintiff a deed in fee simple executed by Eliza B. Lowndes, wife of defendant, for the following described tract of land:

"All that certain piece, parcel or lot of land situate lying and being on South Island, in the County of Georgetown, State of South Carolina, and being on South Island, and measuring and containing in front, on Winyah Bay, two hundred and twenty-five (225) feet, more or less, and running back from Winyah Bay to Mosquito Creek, a distance of thirteen hundred (1300) feet; the said parcel or lot of land containing six and one-quarter (6 1/4) acres, more or less, and butting and bounding as follows, to wit: North by lands of the Church of Messiah; South by lands now or lately of George W. Hazzard: East by Winyah Bay; and West by Mosquito Creek. Being the same premises which were conveyed to me, the said Eliza B. Lowndes, by William Lowndes, by his deed bearing date August 26, 1916, and recorded in the office of the Clerk of Court of Georgetown County in Deed Book J., page 251."

That after entering into the said agreement and at the time of the closing of said transaction, the defendant falsely and fraudulently represented to the plaintiff that his wife, Eliza B. Lowndes, was "the owner of all remaining Lowndes property on South Island"; that the plaintiff accepted said deed, when delivered to him, in good faith, as being a compliance on defendant's part with his contract, and paid to him and his wife the full purchase price of $5,500; that thereafter plaintiff was informed that at the time of the closing of said Lowndes property on South Island was not in Eliza B. Lowndes but, on the contrary, a portion of the property which defendant had contracted and agreed to sell to plaintiff and which plaintiff had contracted and agreed to purchase from the defendant was in the defendant"; that the defendant is claiming a portion of the Lowndes property on South Island against plaintiff in violation of said agreement, though he is estopped by his fraudulent conduct from so doing to plaintiff's great hurt and damage, and prays that it be adjudged by the Court that any and all property claimed by the defendant abutting on, adjacent to, or included in the property conveyed to the plaintiff by Eliza B. Lowndes is property of plaintiff; that the defendant be ordered and required to convey to plaintiff all property claimed by him abutting on, adjacent to, or included in the property conveyed to the plaintiff by Eliza B. Lowndes.

The answer of defendant denies the main allegations of the complaint; alleges that in 1926 his wife, Mrs. Lowndes, listed with Oliver her lot with residence on South Island; that he never listed his lot for sale or employed any one to sell same, nor did he ever sell same or agree so to do; sets up an agreement, dated May 29, 1926, of Mrs. Lowndes with H.L. Oliver, as agent, to purchase her property; that in said agreement the words "and other realty" were inserted by Oliver and stricken out by her before execution; that said contract was carried out and confirmed by plaintiff, and a deed from Mrs. Lowndes, dated October 11, 1926, was delivered to plaintiff and accepted, the money paid, and a lease was executed on the same day as deed by Yawkey to Mrs. Lowndes in pursuance of said contract. Defendant also pleads statute of frauds.

In support of the allegations of the complaint, plaintiff introduced a letter bearing date May 12, 1926, addressed to plaintiff by H.L. Oliver, set out in the record as Exhibit A; a telegram from plaintiff to said Oliver bearing date May 20, 1926, set out in the record as Exhibit B; telegram from said Oliver to plaintiff bearing date May 20, 1926, set out in the record as Exhibit C; a telegram of May 21, 1926, from plaintiff to said Oliver, set out in the record as Exhibit D; telegram bearing date May 21, 1926, from Oliver to plaintiff, set out in the record as Exhibit E, and the deed from Eliza B. Lowndes to plaintiff bearing date October 11, 1926, conveying the lands as described in the complaint; also abstract prepared by James A. Wingate, an attorney, dated October 5, 1926. Let the exhibits from A to E, inclusive, be reported.

"Before specific performance can be decreed, it is first necessary to determine whether there is a contract between the parties or not. If there is no contract, then there is nothing to enforce. It would be speculative for a Court to say what would have been the rights of the parties if they had made a contract. The declaration of opinion would be simply the individual opinions of the members of the Court." Adams v. Power Co., 101 S.C. 170,85 S.E., 312.

"The Courts have no power to make contracts for people and then require them to perform them. They can only require parties to contracts to specifically perform the contracts they themselves make. This is fundamental law, and no authority is needed for it." Fairey v. Strange, 112 S.C. 155,98 S.E., 135.

"It is a well-settled principle of equity that the Courts will not decree specific performance if the contract fails to express the true agreement of the parties by reason of fraud, accident, or mistake. Anthony v. Eve, 109 S.C. 255,95 S.E., 513; Marthinson v. McCutchen, 84 S.C. 265,66 S.E., 120.

"Also if the contract is indefinite, uncertain, or ambiguous, or does not embrace all the material terms, it will not be enforced. 6 Pom. Eq. Jur., §§ 764, 778; Welch Pub. Co. v.Johnson Ry. Co., 78 W. Va., 350, 89 S.E., 707, L.R.A., 1917-A, 200, 204.

"The right to the remedy of specific performance is a matter of sound judicial discretion controlled by established principles of equity and exercised by a consideration of all the circumstances of each particular case. 6 Pom. Eq. Rem., § 762." Maxwell v. Standard FurnitureCo., 127 S.C. 225, 120 S.E., 834.

In Anthony v. Eve, 109 S.C. 255, 95 S.E., 513, the present Chief Justice, speaking for the Court, laid down the rule as follows:

"The enforcement of a contract for specific performance rests in the sound discretion of the Court, and in order for the plaintiff to avail himself of this doctrine: ``He must show a clear, definite and unequivocal agreement together with acts of performance or parts of performance.'

"It is not a matter of absolute right but rests in the sound discretion of the Court and the exercise of that discretion will depend upon the facts and circumstances of each case; a Court of equity will not decree specific performance unless the contract is fair, just and equitable, nor if it fails to express the true agreement of the parties by reason of fraud, accident or mistake. Crawford v. Crawford, 77 S.C. 211 [57 S.E., 837]; Marthinson v. McCutchen, 84 S.C. 265 [66 S.E., 120]; McChesney v. Smith, 105 S.C. 178 [171,89 S.E., 639]."

Was there a contract between plaintiff and the defendant? It is expressly admitted by both the plaintiff and his attorney, Mr. De Foe, under oath, that the only contract claimed was that disclosed by the letter and telegrams which passed between plaintiff and Mr. Oliver. These communications, therefore, contain the whole alleged contract, and upon them rests the rights of the plaintiff.

There is not a particle of evidence to sustain the allegation of the complaint that the defendant had listed his real estate on South Island with Mr. Oliver other than that contained in the letter from Oliver to plaintiff. Nor is there a particle of evidence to sustain the allegation that the defendant had sold, or agreed to sell, his said land on South Island to the plaintiff. By reference to Exhibit A, it will be observed that Mr. Oliver offered the plaintiff a little over 6 acres of Lowndes land on South Island, together with a cottage and other outbuildings thereon. By reference to the deed from Eliza B. Lowndes to the plaintiff, he received this quantity of land with the residence thereon in which Lowndes lived. It is true in his telegrams to Oliver, plaintiff referred to all of the lands owned by Lowndes, but there is not a particle of evidence showing that the defendant had ever authorized Oliver, or any one else, to sell his land on South Island to the plaintiff, or any one else.

Even if the statement in Exhibit A to the effect that Oliver had listed the William Lowndes land on South Island were admitted (though it is positively denied by defendant), at best this could only be authority for Oliver to find a purchaser and bring him to defendant, and not authority to make a complete and binding sale.

In Edwards v. Coleman, 139 S.C. 369, 138 S.E., 42, it was said:

"The owner of land undoubtedly has it within his power to clothe his agent with power to both find a purchaser and to make a complete and binding sale. But the mere employment of an agent to find a purchaser and bring him to the owner, confers upon such agent no authority to bind his principal beyond his instructions. We think it would be a dangerous doctrine if one merely authorized to find a purchaser for property at a fixed price could, without further negotiations with the owner, enter into a contract for the sale thereof that would be binding upon the owner. A real estate broker is a special agent of limited authority, and is strictly confined to the instructions given him, and a third party dealing with him does so at his own peril. We think our conclusions are amply sustained by authority. See, 9 Corpus Juris, 525, 526; Shillinglaw v. Sims, 86 S.C. 76,67 S.E., 906; McCallum v. Grier, 86 S.C. 162,68 S.E., 466, 138 Am. St. Rep., 1037; Chandler v. Franklin, 65 S.C. 544,44 S.E., 70."

"In conformity to settled principles of the law, grounded in reason and sound public policy, among others, that it is the duty of one dealing with an agent to use due care to ascertain the scope of the agent's authority." Bacot v. SouthCarolina Loan Trust Co., 132 S.C. 340, 127 S.E., 562.

It is clear, we think, that plaintiff wanted all of the Lowndes land on South Island. He may have had, and apparently did have, the impression that he was purchasing all of the Lowndes property on South Island, but, as above pointed out, there is not a particle of evidence that he bought all of said lands. This case is not unlike the case of Bell v. Thompson,122 S.C. 400, 115 S.E., 633, and we think is controlled thereby.

Having held that there was no contract between the plaintiff and defendant whereby the defendant agreed to sell his lands on South Island to defendant, it follows that there can be no specific performance.

There is another reason why the decree of the Circuit Judge cannot be sustained.

On April 4, 1890, by deed duly recorded, George W. Hazard purchased from the sinking fund commissioners a lot on South Island, said to contain 3 acres, with fixed boundaries, viz.: Winyah Bay on east; Mosquito Creek on west; lot of the Church of the Messiah on the north; south by lot of Trenholm. This lot evidently contained some 12 1/2 acres, and was evidently subdivided by Hazard into two lots of 6 1/4 acres each. The northern half, containing 6 1/4 acres, was again sold for taxes, and on July 30, 1897, was purchased by William Lowndes from the sinking fund commissioners; deed recorded October 25, 1897, in clerk's office and on 30th July in Secretary of State's office.

On ____________ day of _________________, 1897, by deed recorded on August 2, 1897, Clerk's office, George W. Hazard executed a quitclaim deed to William Lowndes of this lot. This left the southern half of this property in George W. Hazard; the lot being about the same size as the northern half.

On August 26, 1916, by deed recorded August 30, 1916, William Lowndes conveyed to his wife, Eliza B. Lowndes, the northern portion of said Hazard property, describing it as 6 1/4 acres, bounded on the north by Church of the Messiah; east by Winyah Bay; south by George W. Hazard, and west by Mosquito Creek, 225 feet in front by 1,300 feet deep. The deed contains a general warranty.

On February 24, 1919, William Lowndes purchased from George W. Hazard all of the land remaining in him and took a deed recorded March 18, 1919, from the said George W. Hazard, with a description covering the entire lot purchased from sinking fund commission, describing same as 3 acres, bounded north by Church of the Messiah; east by Winyah Bay; west by Mosquito Creek; and south by Trenholm.

Lowndes, having conveyed by warranty to his wife the northern portion of this lot, any conveyance to him of this portion could only inure to the benefit of his wife. At any rate, George W. Hazard then only owned the southern half of the lot, so that his deed to William Lowndes could have been effective only as to that portion.

The result of these conveyances was as clearly shown by these recorded deeds that Eliza B. Lowndes was the owner of the northern portion of the Hazard property, containing 6 1/4 acres, and William Lowndes was the owner of the southern portion of same, of about the same size. Mr. and Mrs. Lowndes lived in the main residence on the lot owned by Mrs. Lowndes. There was also a residence on the William Lowndes property.

On May 29, 1926, Mrs. Lowndes agreed, in writing, to sell her lands on South Island for $5,000 net to her. On the 11th day of October, 1926, she executed and delivered a deed conveying her lands on South Island to the plaintiff. On the same date, plaintiff executed a lease on the premises described in said deed to Mrs. Lowndes for the term beginning October 11, 1926, and ending May 31, 1927. In this lease, plaintiff recites the aforementioned agreement of May 29th by Mrs. Lowndes and the deed of October 11th.

An abstract was prepared by Mr. Wingate, an attorney-at-law. For whom Wingate was attorney does not appear. Both plaintiff and defendant deny that he was attorney for either of them. Mr. Oliver refers to him as "our attorney." At any rate, the abstract was prepared, together with the proposed draft of the deed from Mrs. Lowndes to the plaintiff, and was submitted by Mr. Oliver to the plaintiff and his attorney, Mr. De Foe, for inspection, prior to the execution of said deed. They examined the same, not in New York, but in Georgetown, and stated to Mr. Oliver, according to their own sworn testimony in this case, that the same was satisfactory. They further instructed Mr. Oliver to forward the deed, when executed, together with abstract, with draft attached, to the plaintiff in New York, and the draft would then be paid. Pursuant to these instructions, Mr. Oliver forwarded the said papers, together with the proposed lease from plaintiff to Mrs. Lowndes, and plaintiff and his attorney, Mr. De Foe, went to the bank in New York and examined the abstract, deed, and other papers, and, finding the same to be satisfactory, paid the draft.

If the plaintiff had the knowledge of South Island, which he would have the Court to understand that he did, he knew, or should have known, that the south boundary of the land described in Mrs. Lowndes' deed, to wit, "land now or lately of George W. Hazard," was owned by some person other than himself. The deed to the defendant, as well as that to Mrs. Lowndes, was of record in the proper office in Georgetown County. It was the duty of the plaintiff to examine the records and to know what he was buying. According to plaintiff's own testimony, he was relying not upon representations made by the defendant, Mr. Oliver, or any one, other than his own attorney. As said in Farrar v. Churchill,135 U.S. 609, 10 S.Ct., 771, 34 L.Ed., 246: "If the purchaser investigates for himself and nothing is done to prevent his investigation from being as full as he chooses, he cannot say that he relied on the vendor's representations."

Whatever may have been the plaintiff's desires, as disclosed in his telegrams, it is certain that all the negotiations were merged in the deed executed by Mrs. Lowndes to him on October 11th, and in the lease executed by him to Mrs. Lowndes on the same date.

It is further contended by plaintiff that the defendant is estopped to deny that Mrs. Lowndes was the true owner of all the Lowndes lands on South Island. We find no evidence of any estoppel in this regard. It is not contended that the defendant made any representations, or did any positive act, tending to cause plaintiff to suppose that Mrs. Lowndes was the true owner of all the Lowndes lands on South Island, other than the statement in the Oliver letter (Exhibit A). There is not a particle of evidence that the defendant knew of the statement in this letter, or of the statements in plaintiff's telegrams to Oliver. It cannot be said that plaintiff was induced by any active conduct of defendant to enter into an agreement to purchase all the Lowndes lands for $5,500. In Farrar v. Churchill, supra, the Court further says:

"The general principles applicable to cases of fraudulent representations are well settled. Fraud is never presumed; and where it is alleged the facts sustaining it must be clearly made out. The representation must be in regard to a material fact, must be false and must be acted upon by the other party in ignorance of its falsity and with reasonable belief that it was true. It must be the very ground on which the transaction took place, although it is not necessary that it should have been the sole cause, if it were proximate, immediate and material."

The judgment of this Court is that the decree of the Circuit Judge be, and the same is hereby, reversed.

MESSRS. JUSTICES STABLER and CARTER concur.