Montague Corporation v. Burton Lumber Co.

The opinion of the Court was rendered by Mr. Justice Cothran. The action is for the specific performance of a contract entered into between the Montague Corporation and the E. P. Burton Number Company, dated December 28, 1920, whereby the Montague Corporation agreed, upon certain terms, to sell to the Burton Company the timber rights in certain lands. The Burton Company questioned the ability of the Montague Corporation to convey a good title, expressing its willingness, however, to comply if this could be done. The owner of the fee, J. J. Pringle Smith, was made a party to the suit. He contends that the contract under which the Montague Corporation claimed has been forfeited for reasons which will be explained. The contest, therefore, is really between the Montague Corporation and J. J. Pringle Smith. The facts of the case are as follows: The land in question belonged to one Elizabeth Cordrey. On, July 4, 1902, she conveyed to one R. P. Tucker, “all the timber of every kind and description, both standing and fallen, of twelve (12) inches stump diameter and upwards,” upon the two tracts, containing, in the aggregate, 534 acres, — 43 — for the sum of $468.50. The deed contained the following exceptions: “Exception being made to the following described timber which is not conveyed in this deed, to wit, all timber less than twelve inches stump diameter at the time of cutting.” The deed also contained the following clause: “That the said second party, his heirs or assigns, shall have and the same is hereby granted to him or them the period of ten (10) years, beginning from the date hereof, in which to cut and remove the said timber from the said land, and that in case the said timber is not cut and removed before the expiration of said period then that the said second party, his heirs or assigns, shall have such additional time therefor as he or they may desire, but in the last mentioned event the said second party, his heirs or assigns, shall, during the extended period, pay interest on the original purchase price above mentioned, year by year, in advance, at the rate of 6 per cent, per annum.” By successive conveyances, the details of which need not be enumerated, the title to the timber rights became vested in Freeman Farr, Oneida Timber Company, United Timber Company, and the plaintiff, Montague Corporation. By similar conveyances, the fee-simple title to the two tracts of land passed from Elizabeth Cordrey to the defendant J. J. Pringle Smith, the present owner. The first period of 10 years provided for in the deed for cutting and removing the timber, “beginning from the date hereof” (July 4, 1902), expired at midnight on July 4, 1912, under the familiar rule of excluding the first, and including the last day. State v. Elson, 77 Ohio St., 489; 83 N. E., 904; 15 L. R. A. (N. S.), 686. Sheets v. Selden, 2 Wall., 177; 17 L. Ed., 822. Best v. Doe, 18 Wall., 112; 21 L. Ed., 805. Lorent v. Ins. Co., 1 Nott. & McC., 505. Williams v. Farrow, 1 Bailey, 611; 21 Am. Dec., 492. Gray v. Lumber — 44 — Co., 102 S. C., 289; 86 S. E., 640; and the innumerable case cited in the respondent’s argument. Under the decisions of this Court, notably the case of Tuxbury Lumber Co. v. Byrd, 131 S. C., 32; 127 S. E., 267 (where the former decisions are reviewed), in order to obtain the benefit of the option provided for in the deed for an extended period within - which to cut and remove the timber, the grantee of the right must, before the expiration of the original period, give to the grantor notice of his desired extension, and pay or tender the agreed yearly interest in advance. It appears that, under the peculiar wording of the extension provision, “shall, during the extended period, pay interest on the original purchase price above mentioned, year by year, in advance, at the rate of 6 per cent, per annum,” the grantee would have secured the extension by giving notice of his desire before the expiration of the original 10-year period, and paying the interest on the first day of the extended period, which certainly would answer the requirment of payment in advance. But passing this question, and assuming that the grantee was obliged, not only to give notice of his desire, but to pay or tender the first year’s interest before the expiration of the 10-year period, the grantee complied with both requirments, and was entitled to the extension. It appears that, just before the expiration of the original 10-year period (July 4, 1912), the Oneida Timber Company, which at that time owned the timber rights under the original Cordrey-Tucker deed, was anxious to avail itself of the extension option. A written notice of its’desire was prepared and mailed to its attorney, Legare Walker, Esq., at Summerville, fixing the desired extension at 15 years from July 4, 1912, the time at which it correctly considered as marking the expiration of the 10-year period. For some unexplained reason this notice was dated July 5, — 45 — 1912. It appears, however, from the testimony of Mr. Walker, a most reputable attorney of this Court, that on July 3, 1912, he called Mr. Smith up over long distance telephone, and informed him that the Oneida Company wished to make a formal tender in regard to the Cordrey land, and asked him if he could meet Mr. McCants, a representative of the company, for that purpose on the following day, July 4th. He replied that he would be in his office from 10 to 12 o’clock on the morning of July 4th. Mr. Walker then delivered to McCants the notice and the cash with which to make the tender, and directed him to go to Charleston to meet the engagement with Smith, above referred to, for the purpose indicated. Later in the day of July 4th Mr. Walker had a report from Mr. McCants, and in consequence directed him to meet every train coming into Charleston on which he might expect to find Mr. Smith. After a second report from McCants, Walker instructed him to find Smith, if possible, on the 5th. On that day he again failed to find Smith, and made a tender to a clerk in Smith’s office, and attempted to do the same to Judge Smith, father of Mr. Smith, who declined to have anything to do with the matter. Notwithstanding the positive and circumstantial testimony of Mr. Walker, Mr. Smith entered no denial of it, but sat mute. It appears that the company did all in its power to comply with the requirements of the deed in reference to the extension, and was prevented from strictly complying by the deliberate purpose of Smith to break his engagement with Walker and to evade the service of the written notice and the tender of the interest in advance before the expiration of the 10-year period. The law upon this subject is clear and just. In 26 R. C. L., 624, it is said: “And, if a tender is prevented through the contrivance of the person to whom it should be made, it will be — 46 — excused or be considered equivalent to a tender. Tender is not necessary when the creditor absents himself or avoids the debtor in order to defeat it” — citing Barney v. Bliss, 1 D. Chip. (Vt.), 3999; 12 Am. Dec., 696. Borden v. Borden, 5 Mass., 67; 4 Am. Dec., 32. Noyes v. Clark, 7 Paige Ch. (N. Y.), 179; 32 Am. Dec., 620. Schaeffer v. Coldren, 237 Pa., 77; 85 A., 98; Ann. Cas., 1914-B, 175; notes, 12 Am. Dec., 696; 77 Am. Dec., 471; 86 Am. Dec., 521; 6 Eng. Rul. Ca., 596. In 38 Cyc., 135, it is said: “A tender is waived when the tenderee * * * in any way obstructs or prevents a tender.” In Borden v. Borden, 5 Mass., 67; 4 Am. Dec., 32, it is held (quoting from syllabus) : “Where a party should deliver a deed on a certain day, and at the day was ready with the deed, and would have tendered it, but for the evasion of the other party, it was held equivalent to a tender.” In Noyes v. Clark, 7 Paige Ch. (N. Y.), 179; 32 Am. Dec., 620, in an opinion by Chancellor Walworth, it is said : “A Court of equity, however, will not permit the mortgagee, or his assignee, to take an unconscientious advantage of the mortgagor who is willing to pay at the time prescribed, but who is unable to do so in consequence of the act of the other party * * * by depriving him of the power of making the payment at the time prescribed.” In Schaeffer v. Coldren, 237 Pa., 84; 85 A., 100, Ann. Cas., 1914-B, 177, it is held: “It has been frequently held that acts insufficient in themselves to make a complete tender may operate as proof of readiness to perform, so as to protect the rights of a party under a contract, where a proper tender is made impossible by reason of circumstances not due to the fault of the tenderer.” — 47 — “Where a person intentionally evades a tender when the other party is ready at the place and time, and with the proper * * * amount, the act of the latter is equivalent to a tender.” Note to Moynahan v. Moore (Mich.), 77 Am. Dec., 486. “If the tender is prevented through the contrivance of the party to whom it should be made, it will be excused.” Note to Behaly v. Hatch (Mich.), 12 Am. Dec., 571. In Southworth v. Smith, 7 Cush. (61 Mass.), 391, it is held (quoting syllabus) : “Where a party designedly absents himself from home, for the fraudulent purpose of avoiding a tender, he cannot object that no tender was made.” “The absence of a party to whom tender should be made excuses it.” Lehman, Durr & Co, v. Collins, 69 Ala., 127. In Gilmore v. Holt Pick. (21 Mass), 258, the Court says (quoting syllabus) : “A person to whom money was due having designedly evaded a tender * * * this is a sufficient excuse for making no tender.” It is suggested that the period of proposed extension is unreasonable. But upon this point the appellants are met with the decision of this Court in the case of Beaufort County Lumber Co. v. Johnson, 107 S. C., 147; 92 S. E., 271, where the Court says: “In the Prettyman Case [97 S. C., 247; 81 S. E., 484] it was held that, where a timber deed gave to the grantee ten years in which to cut and remove the timber, and provided that, in case the timber was not cut and removed before the expiration of such period, the grantor should have such additional time as it might desire, but that in such event it should, during such extension period, pay interest on the original purchase price annually in advance, the right to an extension was not dependent upon the condition that the grantee should commence the cutting and removal of the — 48 — timber within the first ten years, and that under such deed the grantee was entitled to such extension of time for cutting and removing the timber as it desired, and not merely to a reasonable time, since the deed -was unambiguous and express.” The judgment of this Court is that judgment of the Circuit Court be affirmed, and that the case be remanded to that Court for such further proceedings as are consistent with the foregoing conclusions. Mr. Justice Marion and Mr. Acting Associate Justice R. O. Purdy concur. Mr. Justices Gary and Watts dissent.