
    L. Reeve Sams vs. Edgar Fripp.
    
      Specific Performance — Frauds, Statute of.
    
    Contract for sale of land construed and defendant decreed to make specific performance.
    Slight delay in filing bill excused by the circumstances.
    The requirements of the statute of frauds in relation to contracts to convey lands are fulfilled by the signature to the contract of the party to be bound, where the adverse party by bringing his bill, or any writing, affirms the contract,
    BEFORE "VVARDLA'W, CH. AT BEAUFORT,
    FEBRUARY, 1858.
    Wardlaw, Ch. This is a suit for the specific performance-of defendant’s contract to sell a tract of land to plaintiff. The parties differ as to the construction of their agreement, substantially as to the sums of money to be paid by plaintiff for his use of the land in the years 1855 and 1856, and as to the time when, if ever, he became purchaser; and further differ as to the procedure of the Court relating to the time and prerequisites for plaintiff’s prosecution of relief. The bill was filed April 3, 1857, and the subpoena to answer was served on the defendant eleven days afterwards. On June 18, 1853, the parties signed the following writing: “ Be it remembered, that it is agreed between Dr. L. Reeve Sams, on the one part, and Edgar Fripp, on the other, that the latter will sell to the former a portion of his Parsonage tract on St. Helena Island, containing two hundred acres, more or less, as will more fully appear on reference to the plat of the same, for the sum of four thousand dollars; one fourth of which, or more, is to be paid at delivery of titles, and the balance by bond, on or before the first day of January, 1857, with interest annually from date of bond. And it is understood that the place will be delivered on the 1st of January, 1854; and that, in the meantime, the use of the pine barren and other wooded land be discontinued except for the purposes on the place.”
    On J anuary 3, 1854, the parties signed the following writing: “ It is agreed between Edgar Fripp, on the one part, and L. R. Sams, M. D., on the other part, that in consideration of the sum of one hundred and forty dollars, (§140) to be paid the said E. Fripp, the said Dr. L. R. Sams has the entire right to use the land or tract commonly called the Parsonage, as far eastward as the public road leading from the Episcopal Church to the Savannah Causeway, for one year, or more, paying the same amount annually. The right to any wood for other purposes than the use of said tract, is excepted. Whenever, at the expiration of any year not extending beyond the last day of the year 1856, the said Dr. L. R. Sams, his heirs, executors, administrators or assigns, require titles for said place and have complied with the above terms, I bind myself, my heirs, executors, administrators and assigns, to make titles deliverable on the payment of four thousand dollars, (§4,000,) the purchase money, according to terms of sale agreed upon in the year 1853.”
    Much conference and negotiation concerning their agreement followed between the parties, of which the only evidence before the Court is such of their letters as have been produced, and the testimony of E. Rhett.
    On January 4, 1855, Sams writes to Fripp in reply to a note of same date, recited, as informing him that if he continued the lease, Fripp would use the timber between the public roads, and inquiring Sams’ decision as to the matter (of purchase) ; that he, Sams, was exclusively entitled to the timber, under their agreement, while he remained in possession, and proceeds: “besides this, it is fully my intention to purchase the tract and to have got the titles from you last month,but”— for an excuse stated — “ that I did not notify you before the conclusion of the year, and I could not visit Charleston for the purpose of bringing up funds, which I intended to do, as you seemed not inclined last year to accept anything but cash in our settlement. It is still my intention to purchase the place.”
    On January 18, 1855, Sams writes to Fripp that there was no stipulation or understanding, express or implied, that he should call for titles as soon as he had formed the intention to purchase, and that he declined to cancel the agreement, and would endeavor to make arrangements for receiving the titles as soon as circumstances would allow, and in a postscript acknowledges the receipt, while writing, of a note of E. Fripp, of the day before, to which want of time prevented a further reply.
    On March 13, 1855, Dr. Sams writes to J. D. Pope, counsel of Fripp, that, although in his view not entitled to demand this positively from his failure to give notice of his intention to purchase before the end of the previous year, he would conclude the purchase if Mr. Fripp would date the conveyance on January 1, 1855, and give some indulgence for the realization of the proceeds of his cotton crop, an account of the sales of which in Charleston he had received the previous evening.
    On March 20, 1S55, Mr. Pope replies to Dr. Sams, that Mr. Fripp had authorized him to say, “ that whatever he may be willing to do, Mrs. Fripp refuses to join him in titles to one half of the land which was hers before marriage, and to release her inheritance thereto, and also refuses to renounce her dower in the other part or moiety of the land which Mr. Fripp purchased since his marriage, the two parts making the Parsonage tract which you agreed to purchase from Mr. Fripp. Under these circumstances I can say nothing about the purchase money, &e., that you offer to pay,” and requests Dr. Sams to address any further communication directly to Mr. Fripp.
    In a note of Dr. Sams to Mr. Fripp, dated October 18, 1855, he says: “I write for the purpose of ascertaining whether you intend giving me titles for the Parsonage tract, according to the terms of our agreement, or not. Please reply to this at once, and say definitely whether you will give them or not.?’ On the same day, Mr. Pope writes to Mr. E. Rhett, counsel of Dr. Sams : “ Mr. Edgar Fripp instructs me to say, that Dr. L. R. Sams having come to Ms terms, that is, to abandon the lease, .take titles and comply with his part of the agreement in all other respects,he, Mr. Fripp, is now ready (as he has ever been) tp fulfil his part of the agreement and execute to Dr. Sams all necessary and proper titles according to law; all papers to bear date 1st of January, 1855.” And on the next day, October 19, 1855, Mr. Fripp writes directly to Dr. Sams: “ Your letter of the 18th inst. is before 'me. This will serve to inform you that I am ready to make titles to you according to agreement and according to law in every respect.”
    On October 24, 1855, Mr. Rhett writes to Mr. Pope in reply to the note of the latter of the 18th, “that Mr. Fripp is in error in speaking of the lease as abandoned by Dr. Sams, and also in understanding Dr. Sams as calling at the time for titles to the Parsonage tract;” that by the agreement of January, 1854, Dr. Sams was entitled to remain lessee until the close of the year 1856, and then call for titles; that the only purpose of Dr. Sams’ note of the 18th to Mr. Fripp, was to 'obtain an answer to the question whether Mr. Fripp intended to give titles to Dr. Sams, as Mr. Pope’s note of March 20th apparently repudiated the purpose to convey; and that Dr. Sams was glad to interpret Mr. Fripp’s note to him of the 19th, as an assurance that there would be no difficulty as regards the titles when Dr. Sams should call for them at the expiration of the present year, or the next.”
    On December 6, 1855, Dr. Sams writes to Mr. Fripp, excusing a full reply to some previous note of Mr. Fripp’s, again insisting on Ms exclusive right to use the timber of the wood land until during the term of his lease he had determined-not to purchase, which determination he had not formed, and granting some license to Mr. Fripp to use a road and landing.
    In a note of May, 1856, to Dr. Sams, “Mr. Fripp declines receiving rent for the Parsonage tract, as he was informed in January, 1855, in answer to a note relative to the lease, that it was discontinued, or, in other words, the place was to be purchased. He prefers to have one settlement.”
    On December 16, 1856, Mr. Rhett writes to Mr. Fripp: “ I am authorized by Dr. L. Reeve Sams to state to you in this form: That the year 1856 having nearly expired, he is ready to receive and requires of you titles to the Parsonage tract, on St. Helena Island, deliverable on or before the 1st of January next, on which day he will be ready to pay one thousand dollars in cash, and to give you his bond for the balance of the purchase money, (three thousand dollars) payable in three annual instalments of one thousand dollars each, with interest from the date of the bond, payable annually, conformably to your two mutual agreements, in writing, bearingdate the 13th June, 1353, and the 3d January, 1854, respectively. Dr. Sams also desires me to inquire in what form you will have the cash payment, whether in specie or bank bills,” and concludes by requesting immediate acknowledgment of the letter and an early answer to it.
    On December 19, 1856, Mr. Fripp writes to Mr. Rhett that .there would be no sale nor execution of titles without payment of the purchase money; that the matter must be finally and fully closed on or before January 1, 1857, and that if Dr. Sams complied with the terms of the agreement or declared his intention to do so, he, Mr. Fripp, would readily say what kind of money he demanded.
    On December 29, 1856, Mr. Pope writes to Dr. Sams that Mr. Fripp would either take the place, receive the unpaid rent for 1855 and 1S56, at one hundred and forty dollars a yeak, (half the interest on four thousand dollars, the price of the land,) and pay for the improvements erected by Dr. Sams, whatever might be determined to be their value by three disinterested persons; or, that he would convey the land, and Mrs. Fripp would release her inheritance and dower to which she was entitled in different parcels of the land, if Dr. Sams would pay the purchase money with interest for the year 1855 and 1856, on the first day of January ensuing, or such early day thereafter as might be agreed upon. On the same day, Dr. Sams writes to Mr. Pope, as a full answer to his proposals: “ I renew my requisition on Mr. Fripp for good and sufficient titles to the parsonage, to be prepared as of this date, on the delivery whereof I will pay Mr. Fripp in cash ' one thousand dollars, besides two hundred and eighty dollars for the rent of the parsonage for 1855 and 1856, and deliver to him my bond for three thousand dollars, payable on the 1st of January, 1857j with interest from date, payable annually. This is all I will do, and all that he has a right to require of me.” This last letter was not communicated to Mr. Fripp until some day after the 3d of January following. On that day Mr. Fripp writes to Dr. Sams“ As you have not complied with the conditions of the lease to the parsonage tract, so as to authorize you to demand titles to the same, I write to learn when it may suit your convenience to restore the place to me. As I cannot object, under the circumstances, to receive the two hundred and eighty dollars for the rent, you will please as early as convenient give me an order, on your factors, which will be a good receipt for the same.” Dr. Sams returned a formal notice at night, stating pressing engagements as a reason for declining to consider the subject.
    On January 6, 1857, Mr. Fripp writes to Dr. Sams: “I have learned to-day, for the first time, that you offered to give two hundred and eighty dollars lease money, and also four thousand dollars on the 1st of January, 1857;” insists that his claim for interest on the purchase money for 1855 and 1856 Vas justified by Dr. Sams* letter of January 4, 1855, and of October 18, 1855, but says that if Dr. Sams will explain his letters, he, Mr. Fripp, will consummate the agreement for sale, “ with the understanding that there is no blame to be attached to me for having required lawful interest on the purchase money for the past two years ;■ the entire amount is required, without which no sales. But the contrary if you retain possession after February 1st. I shall demand for the present year four hundred dollars rent.” On the same day, Dr. Sams replies briefly, that he was busy at the time, and must see Mr. Rhett, which he expected to do on the day after the next, before writing any explanation.
    Mr. Edmund Rhett testifies: Mr. Fripp called at my office oil January 6, 1867, having very recently received Dr. "Sams’ note to Mr. Pope, of December 29, 1856, and inquired what I understood to be Dr. Sams’ intentions. I said I supposed Dr. Sams intends to comply strictly with the terms of the agreement between you, and, in my judgment, he has carried out the letter of the law. Mr. Fripp then said Dr. Sams and myself have misunderstood each other concerning the lease, and I am in no way responsible for the misunderstanding; but I am now ready to comply with my part of the agreement, provided Dr. Sams will acknowledge in a note to me, or in or through you, that I have been in the right. He asked me my opinion as to Dr. Sams’ making this acknowledgment, and I said I think he will not make it, as it would be contrary to his positions in the correspondence. Mr. Fripp then left me, remarking that he would see me again. I understood this last remark as referring to the point of explanation between Dr. Sams and himself. Mr. Fripp, who is a gentleman of truth and character, has lately stated to me that he made the remark in a previous conversation, and without the reference, I suppose, and I wish him to have the benefit of this before the Court, as a correction of my remembrance. In consequence of my expectation of a further conference with Mr. Fripp, or of my conviction that it was unbecoming in me as a solicitor of one of the parties to defeat by precipitate action the settlement of a matter of etiquette between them, I deferred filing the bill, although Dr. Sams had given me peremptory instructions in January to seek relief in this Court.
    On January 12, 1857, Dr. Sams gave to Mr. Fripp a draft on his factors in Charleston for two hundred and eighty dollars, in full payment for the rent of the parsonage for 1855 and 1856, which has been paid. On .December 10, 1856, John Fripp offered in writing to buy the parsonage from Edgar Fripp, at the price of four thousand dollars. "At the trial, it was admitted for the purposes of the argument, that Dr. Sams had erected houses on the parsonage tract to the value of five hundred dollars. This fact cannot be treated as part performance demonstrating a contract to buy, for Dr. Sams in his letter of January 4, 1855, says : “As the place was very imperfectly settled, you promised, in the event of my not purchasing the place, to allow me for the buildings I might put up. The hurried manner in which our "agreement was drawn up, led to its omission,” and this averment is conceded to be true by the adverse party. The improvements may have . been made by Dr. Sams in the character of lessee.
    I have employed more words in stating than I think necessary to be used in adjudging this case.
    The first controversy of the parties is as to their agreement for sale and purchase. The contracts of June 18, 1853, and of January 3, 1854, are to be construed in pari materia. The former is simply an agreement for sale on certain terms which have not been complied with, and the latter is principally a lease from year to year for three years, with an option in the lessee to become purchaser in fee if he chose to pay a rent of one hundred and forty dollars a year within this term of three years, and four thousand dollars on January 1, 1857. The latter supersedes the former contract, except that it refers to it for ascertainment of the sum of the purchase money and the time of payment. As the interest on the purchase money is double the rent, it is natural that the proprietor of the soil should insist that the option of his tenant to purchase the fee should be exercised as soon as practicable, and that the tenant should delay his option so long as he was allowed to do so; and these opposite views are manifested throughout their correspondence. Defendant urges in argument, that plaintiff was bound to sever his relation of tenant to landlord as soon as he determined to become owner in fee, and that his letter of January 4, 1855, announced such determination, and obliged him afterwards to confine himself to the rights of a vendee. Powell vs. Malgrove, 39 L. & E. R. 56-7. This is not the legitimate interpretation of this letter, although defendant’s construction may have been naturally adopted by an honest and punctilious man, possessing pride of opinion and regard for his interests. Dr. Sams simply speaks of a past intention to purchase, of which other engagements had prevented him from giving notice before the close of the year 1854, and of a subsisting intention to purchase, without intention as to the time when lie should conclude it, and in no respect limiting the term of his option. In his note of January 18, 1855, he justly denies any stipulations on his part to demand conveyance so soon as he had determined to purchase; and this is not then controverted. His offer in his letter of March 13, 1855, to anticipate the time of his option and become vendee, as of January 1, 1855, was rejected and annulled by the communication of March 30, 1855, that Mrs. Fripp would not release her dower and inheritance. His note of October 18, 1855, is fairly explained in Mr. Rhett’s note of the 34th of the same month. Mr. Rhett’s note of December 16, 1856, demanding titles for defendant in behalf of plaintiff, seems to misinterpret the agreement as to the time of payment of the purchase money; but this mistake is corrected in Dr. Sams’ note to Mr. Pope, of December 39, 1856. It is unfortunate that this last note was not at once communicated to Mr. Fripp, and its proposals accepted by him. If there was any technical difficulty as to the time when Dr. Sams’announcement of his purpose to purchase reached Mr. Fripp, and there can be none, as Mr. Pope was Mr. Fripp’s agent, this was waived by Mr. Fripp’s letter of January, 6, 1857. Indeed, thenceforward defendant seems to found himself on a punctilio or a conceit of impeccability.
    It is said in behalf of defendant, that plaintiff’s payment on January, 13, 1857, of the rent of 1S55 and 1856, amounts to an abandonment of his option to purchase, and acceptance of defendant’s offer in the letter of January 6, 1857, to treat the whole agreement as a lease. But in my judgment, the payment of rent, like the matter of improvement, is altogether equivocal. The rent was due, whether plaintiff was simply lessee until the end of 1856, or lessee with the option of becoming purchaser, evinced before that date.
    It is further said in defence, that by the agreement of January 3, 1854, it is preliminary to plaintiffs requirement of conveyance that he should pay the rent, and this was not in fact done, and that in good pleading, plaintiff should have alleged in his bill such payment of rent as preparatory to a conveyance to him. On the point of pleading, it may be remarked, that plaintiff had paid the rent before the bill was filed, and in the bill offers to pay the purchase money as oí January 1, 1857, and defendant does not demur for incompleteness in this offer: and it may be concluded that there is no important defect in plaintiff’s pleading, in form or in substance. It is true that plaintiff was bound to pay the rent before he was absolutely entitled to a conveyance from defendant, but this does not imply that he must pay the rent before a formal requirement of titles. His offer in the letter of December 29, 1856, to pay the rent of two hundred and eighty dollars, and the purchase money of four thousand dollars, on January 1, 1857, is a complete offer to perform the stipulations on his part.
    Finally, defendant urges that plaintiff should be debarred on account of his tardiness in seeking a remedy in this Court, considering the limitation as to time in the agreement itself, and the explicit notification by defendant to plaintiff on December 19, 1856, that this limitation would be stringently exacted. The following cases were cited and commented on in argument, but I shall not discuss them specially : Powell vs. Malgrave, 39 L. & E. R., 56; White vs. Bennett, 7 Rich. Eq. 260; Prothro vs. Smith, 6 Rich. Eq. 325 ; Doan vs. Gibbes, Bail. Eq. 371; Thompson vs. Dulles, 5 Rich.Eq. 386; Set on vs. Slade, and the notes, part 2, vol. 2, W. & T. L. C., 19, 20, 27, 30, 32. According to the general doctrine of the Court, time is not usually regarded as of the essence of a contract to sell lands, but it may be rendered essential by the stipulations or notices of parties, particularly when delay is injurious in itself, or beyond a fixed epoch, for the performance of a condition necessary to the completion of the contract. In the present case it was indispensable that plaintiff should avow his option to purchase promptly for remedy, after the refusal of his co-contractor to convey. But the continuance of the negotiation between the parties after January 1, 1857, absolves any rigorous construction of the agreement as to time, and the testimony of Mr. Rhett excuses the slight delay in filing the bill; where the claim of a subsequent purchaser has not supervened and compensation may be made on delay of payment.
    . It is adjudged that defendant must perform specifically his contract to convey the premises in fee, with warranty, on his being paid the purchase money of four thousand dollars, with interest from January 1, 1857.
    And it is ordered that it be referred to the Commissioner of the Court, to inquire and report whether the defendant can convey a good title to the premises, and if he cannot, as to the amount of deduction which should be made from the purchase money; and that the plaintiff, within one month from the confirmation of the Commissioner’s report that the defendant can make good title, pay to defendant four thousand dollars, with interest from January 1, 1857; or, if the report should be confirmed allowing a deduction from the price, pay, within one month from the confirmation of such report, the sum of money found to be due to defendant for price of the land, on pain of having the bill dismissed.
    The defendant appealed upon the grounds:
    1. Because the contract between Sams and Fripp was only a lease, with a right, on the part of Sams, at the end of any year not extending beyond the last of the year 1856, to convert it into a contract of sale by the performance of certain stipulated conditions; that the attempt to convert it into a contract of sale was not made until some time in January, 1857 — after the right had been lost.
    
      2. Because good faith and the true meaning of the contract required Sams to ask for titles at the end of any year, (before the end of 1856) in which he should resolve to buy ; and as he had resolved to purchase at the end of 1854, and had paid the rent of that year, he was in a condition to demand titles. The contract was then converted into a contract of sale; it is therefore submitted, that it was too late, in April, 1857,. to ask for a specific performance, especially as he had repeatedly denied his obligation to take titles, and insisted that his obligation was^to pay the rent only — one half of the interest money.
    3. Because when he demanded titles, in 1857, he was then in arrears for two years’ rent, and was not even in a condition, had the time not expired, to ask for titles.
    4. Because his possession, by his own showing, was always as tenant under a lease, and not as purchaser under a contract to buy; and it is sub mitted that it was not his right to treat the contract sometimes as a contract of sale and sometimes as a contract of lease, as his interest might dictate.
    5. Because Sams never did perform or offer to perform any
    of the conditions which are made precedent by the said contract to his right to ask for titles at any time before the filing of the bill. . .
    6. Because Sams ought at least to be required to pay interest on four thousand dollars from the 1st of January, 1855, and as the defendant, even in January, 1857, offered (if he was ready) to make him titles, the complainant ought to pay the costs.
    
      DeTreville, Pope, for appellant.
    
      Rhett, contra.
   The opinion of the Court was delivered by

Wardlaw, Ch.

We approve the result of the Circuit decree and consider it superfluous to add much to the Chancellor’s reasoning.

It is loosely asserted in the decree that the agreement of the parties of January 3, 1854, superseded their former contract of June 18, 1853, except as it is referred to for ascertainment of the sum of the purchase money and the time of payment. It would have been more accurate to speak of the former contract as still subsisting, although modified by the latter aS to the terms of payment. ' That this was the meaning of the Chancellor is manifest from his remark that the two instruments are to be construed in pari materia.

The objection to the decree which has been principally pressed here, is that the plaintiff was not bound by contract to purchase, and from lack of mutuality the defendant’s agreement to sell is without consideration. This' objection is not suggested in the answer, nor was it argued on circuit, nor is it explicitly stated in any ground of appeal. It would be difficult to maintain the fact, which is the basis of this argument, that the plaintiff was not, from the beginning, bound by a valid agreement to purchase, but conceding, for the discussion, that he was not bound, until, by his letter, he required titles, and offered to perform all the stipulations on. his part to be performed, he was certainly thenceforward bound, and thus consummated his title to' the remedy of the Court. If it were granted that before this letter the defendant had the right to retract his offer to sell, still in fact he never did retract it, and in the last of his numerous letters to plaintiff of January 6, 1857, he offers to convey, although he urges that his misconstruction of the agreement was justified by two letters of the plaintiff to him. It has been always held that the requirements of the statute of frauds concerning agreements to convey lands, were fulfilled by the signature to the contract of the party to be bound, where the adverse party by bringing his bill, or any writing, affirms the contract. In truth the whole dispute between the parties is whether for the years 1855 and 1856-.rent, at the rate of $140 a year, or double that sum, as interest on the purchase money, should be paid by plaintiff, and as we concur in the plaintiff’s construction of the contract as to this particular, it is ridiculous excess to elaborate the case.

It is ordered and decreed that the appeal be dismissed and the circuit decree be affirmed.

Johnston and'Dunkin, CC., concurred.

¡Appeal dismissed.  