Crotts v. Thomas

Denny, J.

Tbe plaintiffs challenge tbe correctness of bis Honor’s ruling in sustaining tbe defendants’ motion for judgment as of nonsuit.

Tbe defendants contend tbe judgment below should be sustained for tbe following reasons : (1) Tbe option was not supported by a consideration; (2) tbe offer was withdrawn; (3) acceptance was not in accord with offer; and (4) tbe option is too indefinite as to tbe sale price, to be enforceable.

It is tbe law in this jurisdiction that instruments under seal require no consideration to support them.

Thomason v. Bescher, 176 N. C., 622 , 97 S. E., 654 ;

Samonds v. Cloninger, 189 N. C., 610 , 127 S. E., 706 ;

Basketeria Stores, Inc., v. Indemnity Co., 204 N. C., 537 , 168 S. E., 822 ;

Coleman v. Whisnant, ante, 258, 37 S. E. (2d), 693 . “At common law a promise under seal, but without any consideration, is binding because no consideration is required in such a case, or, as is sometimes said, because tbe seal imports, or gives rise to a presumption of consideration. It has been said that tbe solemnity of a sealed instrument imports consideration or, to speak more accurately, estops a covenantor from denying a consideration except for fraud.” 12 Am. Jur., 567 , citing many authorities, among them, Thomason v. Bescher, supra;

2 A. L. R., 626;

Kaplan v. Suher, 254 Mass., 180 , 150 N. E., 9 , 42 A. L. R., 1142; and Storm v. U. S., 94 U. S., 76 , 24 L. Ed., 42 .

In April, 1945, tbe plaintiffs informed tbe defendants of their intention to exercise tbe option contained in tbe lease. Tbe defendant, J. B. Thomas, at that time, informed tbe plaintiffs that be did not want to sell and that be would not make a deed for tbe locus in quo.

An option in a lease, which gives tbe lessee tbe right to purchase tbe leased premises at any time before tbe expiration of tbe lease, is a continuing offer to sell on tbe terms set forth in tbe option, and may not be withdrawn by tbe lessor within tbe time limited. Tbe lease is a sufficient consideration to support specific performance of tbe option of purchase granted therein.

Pearson v. Millard, 150 N. C., 303 , 63 S. E., 1053 ;

Thomason v. Bescher, supra; Willard v. Taylor, 75 U. S., 557 , 19 L. Ed., 501 , 49 Am. Jur., 141 , sec. 120. Moreover, tbe real consideration in an agreement to convey land is tbe contract price.

Ward v. Albertson, 165 N. C., 218 , 81 S. E., 168 .

Tbe third contention of tbe defendants is to tbe effect that since tbe locus in quo was described by metes and bounds as containing 30 acres more or less, tbe tender of $4,500.00 for 30 acres and $750.00 to cover any excess in tbe acreage which might be determined by a survey, tbe acceptance was not in accord with tbe terms of tbe option. There is no *388 merit in this contention. Tbe plaintiffs were not required to make tender. Tbe defendants stated in open court for tbe record, at tbe trial below, as well as in tbeir answer wbieb was introduced in evidence, tbat they have at all times refused to execute a deed to tbe plaintiffs in response to tbeir notice and demand for sucb deed.

Phelps v. Davenport, 151 N. C., 22 , 65 S. E., 459 ;

Gallimore v. Grubb, 156 N. C., 575 , 72 S. E., 628 ;

Gaylord v. McCoy, 161 N. C., 686 , 77 S. E., 959 ;

Cunningham v. Long, 186 N. C., 526 , 120 S. E., 81 . Therefore, when tbe plaintiffs notified tbe defendant, J. 13. Thomas, of tbeir election to purchase tbe property at $150.00 per acre, if tbe plaintiffs were ready, able and willing to pay tbat sum for tbe property, it was tbe duty of tbe defendants to prepare and tender a good and sufficient deed for tbe correct acreage contained within tbe boundaries set forth in tbe option.

Phelps v. Davenport, supra; Henofer v. Realty Co., 178 N. C., 584 , 101 S. E., 265 ; 153 A. L. R., 13 N;

Duffy v. Phipps, 180 N. C., 313 , 104 S. E., 655 ;

Patrick v. Worthington, 201 N. C., 483 , 160 S. E., 483 , and since tbe locus in quo is described by metes and bounds if there is any real controversy as to tbe acreage contained therein, tbe maxim id cerium est quod cerium reddi potest applies.

Peel v. Calais, 223 N. C., 368 , 26 S. E. (2d), 916 .

Tbe fourth contention of tbe defendants tbat no price has been agreed upon, is likewise without merit. Tbe defendant, J. B. Tbomas, who at tbe time of tbe execution of tbe lease and option was unmarried, bound himself, bis heirs, executors and administrators, to convey tbe locus in quo to tbe plaintiffs at any time during tbe term of tbe lease, “at a price to be agreed upon, which price in no event shall be more than at tbe rate of $150.00 per acre for said land.”

In an option to purchase at a price to be agreed upon, but not to exceed a stated sum, sucb sum may be accepted by tbe optionee as tbe purchase price without further negotiations. 49 Am. Jur., 41 , 117 A. L. R., 1097 Anno.;

Wright v. Kaynor, 150 Mich., 7 , 113 N. W., 779 ;

Kastens v. Ruland, 94 N. J. Eq., 451, 120 A., 21 ;

Heyward v. Willmarth, 87 App. Div., 125 , 84 N. Y. S., 75;

Hunter v. Farrell, 42 N. B., 323, 14 D. L. R., 556;

Condon v. Arizona Housing Corp.

(Ariz.) (25 June, 1945), 160 Pac. (2d), 342 .

For tbe reasons herein stated, tbe ruling of tbe court below in sustaining tbe defendants’ motion for judgment as of nonsuit, is Reversed.