Pure Oil Co. v. Baars

Stacy, C. J. It is conceded that the right to a jury trial has been preserved and that it should be accorded, unless upon the whole record the plaintiff is entitled to recover in accordance with the ruling below. The allegations of imposition rest upon the legal effect of naming plaintiff's attorney trustee in the deed of trust, and the significance of the automatic renewal provision in the option to purchase. The defend *615 ants say tbat the trustee is a representative of the plaintiff, which converts the deed of trust into a mortgage as a matter of law, Mills v. B. & L. Asso., 216 N. C., 664, 6 S. E. (2d), 549, and that the automatic renewal provision in the option to purchase does violence to the rule against perpetuities and renders the option void. Starcher v. Duty, 61 W. Va., 373; Barton v. Thaw, 246 Pa. St., 348. The defendants seem to overlook the fact that, with their written consent, the option was exercised on 23 January, 1940, and one of the appellants, J. A. Harrell, has already complied with this agreement. Baars at first put his declination on the ground that his wife would not sign the deed and that he had also decided not to sign it. He now gives a different reason for his refusal. McAden v. Craig, 222 N. C., 497, 24 S. E. (2d), 1. Moreover, the option is an integral part of the transaction, and it would be inequitable to allow the defendants to claim the property under deed from the plaintiff and at the same time annul the essential terms of its acquisition. If the option is to go out, so must the deed which induced it. Wooten v. Walters, 110 N. C., 251, 14 S. E., 734. The result, therefore, would be the same whether upheld or rejected. As the defendants have already made their choice by the agreement of 23 January, 1940, no useful purpose would derive from executing a circular performance in the courts. The defendants themselves confirm the conclusion that the several instruments, which were executed contemporaneously and which pertain to the same transaction, are to be considered as competent parts of the understanding between the parties. Harrell and Baars both say the instruments are “all a part of one and the same transaction.” Peeler v. Peeler, 202 N. C., 123, 162 S. E., 472; Perry v. So. Surety Co., 190 N. C., 284, 129 S. E., 721. Where a contract is entire, the whole contract stands or falls together. Dolan v. Lifsey, 19 Ga. App., 518, 91 S. E., 913. If the defendants would avoid the option, and call this equity, then they must do equity by surrendering the property which they acquired at the time of the transaction. Ferguson v. Blanchard, 220 N. C., 1, 16 S. E. (2d), 414. It will not do to affirm the contract in part and repudiate it in part. This was the conclusion of the referee which the trial court upheld. The correct result seems to have been reached in the court below. It will not be disturbed. Affirmed.