The opinion of the court was delivered by
Mr. Justice McIver.The plaintiff seeks, by this action, to enforce the specific performance of a contract for the sale of a house and lot on Sullivan’s Island, the terms of which are to be found in the correspondence which passed between the parties. The plaintiff, by letter dated July 25, 1881, addressed to defendant’s agent, says: “I hereby agree to sell you lot on front beach, Sullivan’s Island, belonging to me, and known as No. 16 in a rough plat of Moultrieville, and purchased by me from E. M. Jervey March 21, 1880, for the consideration of $300 cash', possession to be given November 1, 1883, provided I can obtain the consent of the present lessee.” To this letter the defendant replied by letter of same date, confirming the negotiation made by his agent, and adding these words: “I had hoped to have got immediate possession, intending to use the small building for *410my bathing this season; but as I will not build before November, I will arrange otherwise.”
The defendant in his answer admits the making of the contract as above stated, but denies the allegation of the plaintiff, that he “has always been, and still is, ready and willing to perform the agreement on his part, and, on being paid the purchase money, to convey the said lot of land to the defendant, and- to let the defendant into possession thereof from the time in the agreement specified.” And he also denies the ■ further allegation, “that on or about the first day of November the plaintiff duly offered to make title to the said land to the defendant pursuant to the agreement; but the defendant then, and ever since, has refused to accept the same and to pay the purchase money.” On the contrary, the defendant avers that the plaintiff “ivas then, has been ever since, and is now unable to make title and convey the said lot of land to the defendant pursuant to said agreement,” by reason of the fact that after the making of said agreement, and before the- said first day of November, the premises in question were in part destroyed by a storm in August, 1881, and so large a part of said lot covered by the sea as to render it wholly unfit for the purposes for which defendant proposed to purchase.
On the trial below two questions were raised, one of fact and the other of law. 1. Whether the lot was injured to such an extent by the storm of August, 1881, as to render it unfit for the purposes for which the defendant proposed to purchase. 2. If so, does this relieve the defendant fioin the liability to perform the contract? The Circuit judge answered both of these questions in the affirmative, and accordingly rendered judgment dismissing the complaint. From this judgment the plaintiff appeals upon the several grounds set out in the record, which, however, substantially raise only the two questions above stated.
The first being a question of fact, we are bound, under the well settled rule, to accept the conclusion reached by the Circuit judge, unless it is shown to be without any evidence to support it, or manifestly against the weight of the evidence. The testimony as to the extent of the injury done to the premises by the storm was certainly conflicting, and it is quite clear that we cannot say that the conclusion reached by the Circuit judge is with*411out any evidence to support it. Nor can we say that his conclusion was manifestly against the weight of the evidence. There was conflict in the testimony and it was for the Circuit judge to weigh it, and if the conclusion which he has reached can be supported by the testimony, we will not interfere, even though there may be other testimony in the case pointing to a different conclusion. We are not to substitute our judgment for that of the Circuit judge as to the comparative weight of the testimony, but we are simply to inquire whether manifest error has been shown. This, we think, has not been done, but, on the contrary, a review of all the testimony satisfies us that the conclusion reached by the Circuit judge may well be supported. Gary v. Burnett, 16 S. C., 632.
This brings us to the question of law involved in the case, and the answer to that depends upon the inquiry, who was the owner of the property in question at the time the destruction or injury took place; for it is quite clear that whoever was the owner at the time must bear the loss. To solve this inquiry it is necessary for us to consider the nature of the property in question. It is conceded to be a mere leasehold estate, and not an estate of freehold. Hence the practical inquiry in this case is, whether the ownership of the property in question was transferred from the plaintiff to the defendant at the date of the contract above set forth, to wit, July 25, 1881. According to the authorities, the title or estate in property of the character of that now under consideration does not pass until the leaseholder’s term commences and he has taken, or is entitled to take, possession. The very nature of such an estate consists in use and possession, 4 Kent Com., 85; 1 Washb. Real Prop., Bk. 1, Ch. 10, § 1.
Now as title or estate constitutes what we understand by the term ownership, it would seem to follow that, as no title or estate passed out of the plaintiff and into the defendant at the date of the contract, inasmuch as by its terms the defendant then had no right of entry and no possession or use of the property, the ownership remained in the plaintiff, and if so, the loss must fall upon him. It is true that an estate for years may be created to commence in futuro, and that in such a case the lessee acquires what is called an interesse termini, but the title or estate, that is, the *412ownership, must remain in the lessor, and until the title or estate of the lessee commences, the property is at the risk of the lessor, because until that time he is the owner.
In this state the doctrine has been established, that “where there is a substantial destruction of the subj ect-matter, out of which rent is reserved in a lease for years, by an act of God, or of public enemies, the tenant may elect to rescind, and on surrendering all benefit thereunder shall be discharged from the payment of rent.” Coogan v. Parker, 2 S. C., 259, and the cases there cited. Now if this is the rule to be applied for the relief of one whose term or estate has actually commenced, there would seem to be much stronger reason for applying the same rule for the relief of one whose term or estate has never commenced. The fact that one is a tenant and the other a purchaser can make no difference in the principle. In fact, a tenant is a purchaser of the use and possession of the demised premises for the term of his lease.
But in addition to this, we think that under a proper construction of the terms of the contract in this case it amounted to nothing more than an executory agreement for the sale of a leasehold estate, the term of which was to commence, and possession to be given, at a future day. The very fact that it contained a condition — “provided I can obtain the consent of the present lessee”— shows conclusively that neither of the parties could have regarded the contract as an absolute sale at the time. It is clear from the defendant’s letter accepting the proposition to sell, that he expected and desired to obtain possession at least as early as the first of November, 1881, and if he could not do so, he would not be bound, and whether he could do so depended upon the consent of a third party, the then “present lessee” of the plaintiff; and it is, therefore, impossible to suppose that either party supposed that they were then making an absolute contract of sale. When the lease of the then lessee of the plaintiff would expire, and whether his consent had been obtained before or after the partial destruction of the premises by the storm in August, or whether such consent ever was obtained, does not appear; and certainly until such consent was obtained, it could not be said that there was any binding contract between the parties.
*413The fact that the consideration was to be paid in octsh cannot affect the question, for certainly it cannot for a moment be supposed that the parties intended by the word “cash” that the consideration should be paid at the date of the contract, for at that time the condition upon which it depended had not been performed, as the consent of the “present lessee” had not then been obtained. The true construction is, that the cash was to be paid when the term commenced and when possession was to be delivered. And this is the construction placed upon it by the plaintiff himself, for in his letter to the defendant and in his complaint he only demands interest from the first of November, 1881, whereas, if the cash was to be paid at the date of the contract, he would have been entitled to interest from that time.' It is true that the plaintiff in his complaint alleges that he always had been and still is ready to perform the agreement on his part, and this might be regarded as necessarily implying that he had obtained the consent of his then lessee; but this allegation is distinctly denied in the answer, and we find no testimony to sustain such allegation.
As to the first ground of appeal, which alleges error on the part of the Circuit judge in holding that the reduction of the size of the lot below one-half of an acre rendered it impossible for the defendant to conform to the requirements of the statute in that respect, we do not deem it necessary to say anything. For, even conceding that there was error in this ■ respect, that was only one of the reasons assigned for the judgment below, and as such judgment, as we have seen, may be supported upon other grounds, such error, if it be one, becomes immaterial. We are satisfied that the plaintiff is seeking to enforce the specific performance of a contract when he himself is unable to-perform his part of the agreement, and that there was, therefore, no error in the judgment dismissing the complaint.
The judgment of this court is that the judgment of the Circuit Court be affirmed.