April 3, 1918. The opinion of the Court was delivered by The action was for specific performance. All parties having or claiming any interest in the lands, or what might have been any interest therein, were duly made parties. The plaintiff and defendant, Fallaw, individually and as trustee of Bozard, entered into a contract for the sale of lands described in the pleadings for $20 per acre. This amounted to $4,800. After the contract was entered into several questions arose as to the validity of the title, whether a title in deed in fee simple, clear and unincumbered, could be given. All issues were referred to the master, both of law and fact. The master made his report, wherein he found that the liens and incumbrances on the land were in an amount in excess of the purchase price. Judge Gary passed an order confirming the report of the master, and decreed that the lands should be sold. The lands were sold at a price considerable in excess of the $4,800, agreed purchase price, and, after all claims were paid in accordance with Judge Gary's decree, a considerable surplus was left, which was claimed by the plaintiff. This claim is resisted by the *Page 310 defendant, who claims she should be entitled to it. The matter again came up before Judge Gary, to decide who should have this surplus. His Honor decided that the plaintiff was entitled to this surplus, virtually decreeing specific performance in favor of the plaintiff. From this decree defendants appeal, and allege error in the decree and seek reversal.
The exceptions are numerous, and will not be considered separately, as, in our view of the case, the decree must be reversed on the ground that it is a matter of discretion lodged in the Court, in all actions for specific performance, whether or not the Court will decree specific performance. When the master reported that the incumbrances on the property were more than the agreed purchase price, the action for specific performance was practically abandoned, and a decree made for sale of the lands to pay off the incumbrances.
A Court of equity, when it acquired jurisdiction in a claim made for a specific performance, can retain jurisdiction, and adjudicate all of the legal rights of the parties to the suit in conformity with justice, equity and good conscience. The Court is bound to see that complete justice is done to the parties before the Court.
The decree of his Honor, in allowing the surplus in the hands of the master to be turned over to the plaintiff, does not appeal to us as being a fair, just, and equitable thing to do under the facts and circumstances peculiar to this case. We cannot agree to the finding of the capable and high-minded Circuit Judge, as specific performance is not a matter of absolute right, but rests in the sound judicial discretion of the Court, guided by established principles.Davenport v. Latimer, 53 S.C. 572, 31 S.E. 630;McChesney v. Smith, 105 S.C. 176, 89 S.E. 639. The facts and circumstances in this case do not appeal to us as such a fair, just and equitable contract that, in the exercise of the discretion of a Court of good conscience and equity, *Page 311 a decree of specific performance should be made. The decree of his Honor to the surplus funds in master's hands is reversed.
Reversed.
MESSRS. JUSTICES HYDRICK and GAGE concur.
MR. CHIEF JUSTICE GARY. I dissent for the reasons stated in the decree of his Honor, the Circuit Judge.