The plaintiff states his cause of action in his complaint as follows:
(1) "That on the 7th day of February, 1903, Robert J. Palmer and Ainsley H. Dinkins entered into an agreement *Page 270 under seal whereby the said Robert J. Palmer leased to said Ainsley H. Dinkins all that piece, parcel and tract of land (describing it), being the same land conveyed by said Ainsley H. Dinkins to said Robert J. Palmer by deed dated February 6, 1903, and recorded in clerk's office, Richland county, in Deed Book AH, p. 222; that the said agreement provided that the said lease should continue from year to year for the term of ten years from the date thereof, and that the said Ainsley H. Dinkins, his heirs, executors, administrators, and assigns, should pay to the said Robert J. Palmer the annual sum of $100 as rental for said land; and in said agreement the said Robert J. Palmer covenanted and agreed with the said Ainsley H. Dinkins to sell and convey to him the said tract of land at the price of $1,200 at any time during the continuance of said lease; that, in pursuance of said agreement, the said Ainsley H. Dinkins went into possession of said tract of land and remained in possession of same until his death, as hereinafter set forth, and, as plaintiff is informed and believes, did, from time to time, pay the annual rental provided for in said agreement."
(2) Alleges the lunacy of Palmer and the appointment of Simons as his committee.
(3) Alleges the death of Dinkins, leaving a will of which plaintiff is executor.
(4) "That in and by the terms of said will the testator devised and bequeathed all of his property, both real and personal, including all of his rights under the aforesaid agreement with Robert J. Palmer, whereby the said testator acquired a lease upon the tract of land above described, together with an option to purchase the same, to his five children, their heirs and assigns, share and share alike; and said testator, in said will, authorized and empowered his executor to take all proper and necessary steps to comply with the terms and provisions of the aforesaid agreement, and to complete the purchase of the said tract of land for the use and benefit of testator's children, with the power to institute or prosecute all necessary suits and proceedings in the *Page 271 premises, and with full power and authority to execute any mortgage or mortgages to secure the payment of such sum or sums as may be necessary to comply with the purchase of the said tract of land."
(5) Alleges that the defendants, other than Simons, are the children and devisees of Dinkins, and that some of them are infants.
(6) Alleges that the estate of Dinkins is in debt, and that it will be necessary to mortgage the personal property of the estate and the crops growing on the land to raise funds to make and gather the crops and support testator's children.
The prayer of the complaint is as follows:
"(1) That the amount due upon the contract of purchase aforesaid be ascertained and determined, and upon the payment of the same to W.J. Simons, as committee of Robert J. Palmer, that a deed of the said tract of land be executed to the children of Ainsley H. Dinkins, defendants herein.
"(2) That the plaintiff, as executor, be authorized and empowered, upon the execution and delivery of the deed aforesaid, to mortgage the said tract of land for the purpose of raising such an amount as will pay the sum found to be due thereon, and also such amount or amounts as may be necessary to pay off and discharge the claims and obligations of the estate, and the costs and expenses of this action; and that the plaintiff, as executor, also be authorized to mortgage the agricultural crops for the current year upon said tract of land, or, if necessary, to mortgage the personalty of said estate, in order to pay for the making and gathering of said crop and for the support of testator's children.
"(3) For such other and further relief as may be just and necessary, and for the costs of this action."
The answer of Simons admits the allegations of paragraph 2 of the complaint, and denies all others, and sets out as an exhibit thereto, a copy of the agreement referred to in paragraph 1 of the complaint, which reads as follows: "This agreement made this 7th day of February, A.D. 1903, by R.J. Palmer, on the first part, and Ainsley H. Dinkins, *Page 272 of the second part, both of the county and state aforesaid, witnesseth: That the party of the first part does hereby lease, demise and to farm let to the party of the second part that tract of land (describing it), being the land this day sold and conveyed to R.J. Palmer by the said Ainsley H. Dinkins. This lease to continue from year to year for the term of ten years from this day, provided the rental hereinafter stipulated for is paid regularly, as herein stipulated; but failure to pay any installment of rent when due shall, at the option of the party of the first part, terminate immediately on the exercise of such option, this said lease. The party of the second part hereby stipulates and covenants and agrees, to and with the party of the first part, his heirs, executors, administrators, and assigns, to pay to the party of the first part, as rental for said lands above mentioned, the annual sum of one hundred dollars, said rental to be paid on or before December 1st next, and on or before December 1st of each succeeding year, during the continuance of this lease. The party of the first part further covenants to and with the party of the second part to sell and convey to said party of the second part the above mentioned and described tract of land at the price of twelve hundred dollars, upon payment by said party of first part of said purchase price, at any time during the continuance in force of this lease; and it is further stipulated by and between the parties hereto that the said Ainsley H. Dinkins, if he chooses to exercise the option to purchase said lands, may make payments to the said R.J. Palmer from time to time on his said contract in such sums as he sees fit; and that all payments made by said Dinkins in excess of the yearly rental above stipulated shall be credited on the purchase price above named, but that the yearly rental shall continue as above stipulated until the purchase money is paid in full and conveyance made for said land, under the terms of the foregoing contract."
The Court held that the deed from Dinkins to Palmer and the contract above set out constituted Palmer a mortgagee *Page 273 of the land, and that this was an action to redeem. It found that no part of the principal of $1,200 due by the estate of Dinkins had been paid, and, after allowing all proper credits, that there is still due $582.35 on the rent stipulated for in the contract, and adjudged that the land be sold, and out of the proceeds, after paying the fees and costs and expenses of sale, the balance due as rent and the principal sum of $1,200 be paid to Simons, as committee of Palmer, and the balance, if any, be divided among the heirs of Dinkins or be paid to his executors, and that the costs should be paid equally by plaintiff and the estate of Palmer, as one side was no more at fault than the other. From this decree, Simons appealed.
A preliminary question to be decided is whether notice of appeal was served in time. There were two decrees. The first decided the issues of law and fact and the rights of the parties thereunder. This decree was filed January 28, 1913, and notice of the filing thereof was served upon defendant's attorneys, and notice of appeal was not served within ten days thereafter. But, at the foot of this decree, the Judge directed that a formal decree be prepared and submitted to him, and expressly retained jurisdiction of the cause until that could be done. The formal decree was filed March 25, 1913, and notice of appeal was served March 28th, within ten days thereafter, and was therefore in time, as the first decree was not intended to be final.
The contract between Dinkins and Palmer is too plain to require construction. Upon its face, no other construction can be given it than that the parties intended an absolute and unconditional conveyance of the land by Dinkins to Palmer, and a lease thereof by Palmer to Dinkins, with the option to purchase it at any time during the continuance of the lease, and, upon payment of the agreed price, to have a reconveyance thereof. There is not a particle of extrinsic evidence tending to show any other intention; there is evidence that Dinkins bought the land from Childs and *Page 274 owed him for it, and that Palmer paid Dinkins' debt to Childs; but there is no evidence that he took an assignment of the debt. The payment by Palmer of Dinkins' debt to Childs was no doubt the consideration of the deed of Dinkins to Palmer. There is no evidence of any existing debt of Dinkins to Palmer, which would be necessary to make the transaction a mortgage. Hodge v. Weeks,31 S.C. 281, 9 S.E. 953. The testimony of Mr. John P. Thomas, the attorney who was consulted by Dinkins, shows clearly that Dinkins understood the transaction as a sale and lease with option to buy. Throughout his testimony he refers to the paper as a lease and contract of purchase. In his will, which was written by Mr. Thomas, Dinkins refers to it as a contract "whereby I have acquired a lease upon certain premises in Richland county, together with an option to purchase same," and authorizes his executor to take the steps necessary to comply with the terms of the contract and "complete the purchase of the land herein described." By reference to the complaint, it will be seen that the action is predicated upon the theory that the transaction was a conveyance, lease, and contract to purchase. It is there alleged that the land was conveyed by Dinkins to Palmer; that Palmer leased it to Dinkins, with the option to purchase; and that Dinkins went into possession in pursuance of said agreement. Nowhere, either in the written instruments, in the testimony, or in the complaint, is there the slightest intimation that the transaction was intended as a mortgage.
The facts of the case bring it so clearly within the principles of previous decisions of this Court that it is only necessary to refer to them to show that the transaction cannot be held to be a mortgage without overturning the principles decided in those cases. Brown v. Bank, 55 S.C. 70,32 S.E. 816; Creswell v. Smith, 61 S.C. 575, 39 S.E. 757;Ray v. Counts, 82 S.C. 555, 64 S.E. 1135; Williams v.McManus, 90 S.C. 490, 73 S.E. 1038. In each of these cases there was evidence tending to show that the transaction *Page 275 in question was intended to be a mortgage, while in this case, there is none. In Williams v. McManus the Court said: "While it is undoubtedly true that a deed which appears on its face to be an absolute conveyance may in equity be declared a mortgage if the evidence be sufficient to show that such was the intention of the parties, yet it is equally true that the presumption is that the deed is, what on its face it purports to be, an absolute conveyance, and, to establish its character as a mortgage, the evidence must be clear, unequivocal, and convincing, for otherwise the natural presumption will prevail." These authorities show that the Circuit Court erred in holding that Palmer was a mortgagee.
The complaint shows that the action is one for specific performance, and not an action to redeem, and the Court erred in treating it as an action to redeem. Sims v. Steadman,62 S.C. 300, 40 S.E. 677; Francis v. Francis, 78 S.C. 181,58 S.E. 804.
There is no testimony that Dinkins ever notified Palmer, or his committee, that he intended to exercise his option to purchase. He could have availed himself of it, or not, as he saw fit. At no time could Palmer or his committee have brought suit against him for specific performance, because he had neither exercised the option nor expressed any intention of doing so. Therefore it cannot be said that, at any time prior to the commencement of this action. Dinkins owed Palmer anything on the purchase price of the land. But the commencement of the action during the continuance of the lease would have been a sufficient acceptance of the option to entitle Dinkins' executor and the beneficiaries under his will to specific performance of the contract, if the plaintiff had shown that he was ready and willing and able to perform. Dinkins' death, the minority of some of his children, and the lunacy of Palmer are sufficient in equity to excuse the failure to tender performance before action brought, since Palmer's misfortune made it impossible for *Page 276 him to execute a deed, if payment of the purchase price had been tendered, and since his committee could not have done so, without the order of the Court. Even in that event the Court would not have decreed specific performance, except upon payment of the balance found to be due to Palmer by Dinkins for rent, on the principle that he who seeks equity must do equity. Lake v. Shumate, 20 S.C. 23.
The rule is well settled that, in actions for specific performance, "plaintiff must show performance or ability, readiness, and willingness to perform all the provisions of the contract to be performed by him. Save in the exceptional case of immaterial default admitting of compensation, relief must be denied to a plaintiff who is unable to perform his part of the contract." 36 Cyc. 693; 26 A. E. Enc. L. (2d. ed.) 42.
In Davenport v. Latimer, 53 S.C. 572, 31 S.E. 633, after finding that there was no evidence of tender of performance by plaintiff, or of readiness and willingness and ability to perform, the Court said: "Specific performance is not a matter of absolute right, but rests in the sound judicial discretion of the Court, guided by established principles. Generally a vendee cannot maintain an action against a vendor for specific performance of a contract to sell land, unless he shows that he has complied, or offered to comply, with the contract on his part, and was refused by the vendor. But, since equity leans to compensation in preference to forfeiture, the vendee, if he cannot show exact compliance with the contract on his part, may still have specific performance or compensation, provided he is not guilty of laches in the assertion of his claim, stands ready and willing to comply, and shows reasons satisfactory to the Court in excuse of his failure to comply. Plaintiffs have not brought themselves within this principle, for, as stated, they have not complied, or offered to comply, and have shown no reason in excuse of their default, even if it be conceded that an action brought *Page 277 two years after default on the contract is not laches under the circumstances of this case." See, also, Moseley v. Witt,79 S.C. 143, 60 S.E. 520, where the Court said: "There is no evidence whatever that the plaintiff has paid or offered to pay the entire purchase money, and under the contract he was not entitled to a conveyance until the whole of the purchase money should be paid. Indeed, he could not compel defendant to accept payment until the whole became due. The plaintiff's action would necessarily fail on this ground."
In the case at bar the plaintiff not only failed to show readiness, willingness, and ability to perform, but, on the contrary, the allegations of his complaint show beyond doubt that he was not able to perform, except by mortgaging the land to raise the money to pay for it, which, of course, he could not do, because he did not have the legal or equitable title.
The proposition that, in an action like this by the vendee against the vendor for the specific performance of a contract of sale, where there is no complication of equities, the Court should order the land sold to pay the purchase price out of the proceeds is too untenable for discussion. That would not be specific performance of the contract which the parties made, but would be the making of an entirely different contract for them, and enforcing it in a manner not contemplated by them. The vendor agreed to part with his title only upon payment of the purchase price. But, if the Court orders a sale of the land, the purchaser at such sale will acquire the title, even though it should bring much less than the price which the vendor agreed to take and the vendee agreed to pay. No authority sanctioning such a course has been cited, and I dare say none can be found. In such actions by the vendor against the vendee, and perhaps, also, in some actions by vendee against vendor, where the equities are so complicated that a sale is necessary to effect *Page 278 the intention of the parties, a sale may be ordered. But this case presents no such features.
The judgment should be reversed.
MR. JUSTICE WATTS concurs in the dissenting opinion of MR. JUSTICE HYDRICK.
The Supreme Court being equally divided, the judgment of the Circuit Court is affirmed.