Lockwood v. Frost , 285 S.W. 874 ( 1926 )

The leases and option to purchase land covered by them were executed at the same time, as parts of the same transaction, and together, therefore, constituted the contract between the parties. 13 C.J. 528. Conceding that the leases were assignable by the express terms thereof, appellants nevertheless insist that the option to purchase land covered by them, constituting part of the contract, was not assignable because personal to appellee. Therefore, they insist further, the assignment of that option by appellee to the oil corporation was void. Keeping in mind the fact that the leases and option to purchase are all parts of the contract, it would seem, in view of the provision in the leases authorizing the assignment thereof and the absence of a provision in the option forbidding it, that the option also was assignable. Whether it was or was not, we need not determine, however; for if it was not, and the assignment of it by appellee to the oil corporation was therefore void, as appellants contend it was, the right to exercise the option did not pass to the oil corporation, but remained in appellee, and hence, in that view, no right of appellants was affected by the assignment. On the other hand, if the assignment was not void, then all right thereby acquired by the oil corporation passed back to appellee when that corporation reassigned the option to him, and hence, in that view also, no right of appellants was prejudiced by the assignment of the option to the oil corporation.

The contention that appellee, having a right to continue the leases or to purchase land they covered, elected to continue the leases when he assigned same to the oil corporation, and thereafter was without right to exercise the option to purchase, seems to be on the theory that a continuance in him of a right to exercise the option after he assigned the leases was inconsistent with rights acquired by the oil corporation as his assignee. If that is true, it would seem that the inconsistency was of no concern to appellants, but was a matter of which the oil corporation alone had a right to complain. It is plain from the terms of the contract between appellee and appellant H. P. Lockwood, of which the oil corporation had full notice, that the corporation as assignee of the leases would have been as much bound by appellee's exercise of the option as appellee himself would have been had he never assigned the leases. Moreover, the rights of appellants were fully protected from any prejudicial consequences to them flowing from the oil corporation's ownership of the leases by provisions in the instrument whereby the oil corporation reassigned the option to purchase to appellee.

The contention that it did not appear that appellee had made such tender of performance of the contract on his part as entitled him to a decree requiring appellants to perform It is on the theory that the tender by appellee was not made until the day before the expiration of the time within which, by the terms of the contract, he was entitled to exercise the option. The reason why the contention should be overruled appears in the statement of it, in that it there appears that the option was exercised by appellee within the time allowed him to exercise it by the terms of the contract.

The contention that appellee was not entitled to the relief granted to him because he did not at the trial actually tender into court the cash consideration he was to pay if he exercised the option and purchase the land is without merit. "If it be money that is tendered, a simple offer to pay it is a sufficient tender in equity without bringing the money in court, because a court of equity can decree performance on payment of the money and not permit the title to pass until then." Simkins on Equity, 700; Fordtram v. Dunovant, 54 Tex. Civ. App. 564, 118 S.W. 768; Beaton v. Fussell (Tex.Civ.App.) 166 S.W. 458.

We do not agree with appellants that the decree was erroneous so far as it specified time — not attacked as unreasonable — within which the parties were to perform their respective obligations under the contract. The provisions of the decree in that respect seem to be in accord with the practice in such cases. Kalklosh v. Haney,4 Tex. Civ. App. 118, 23 S.W. 420; Bateman v. Hopkins, 157 N.C. 470,73 S.E. 133, Ann.Cas. 1913C, 642; Le Vine v. Whitehouse, 37 Utah, 260, 109 P. 2, Ann.Cas. 1912C, 407. Other contentions by appellants not disposed of by what has been said are overruled as also without merit.

As we view the record, the case on its merits is as appellee presented it in his brief when he said:

"Under the option agreement Lockwood was entitled to a certain cash consideration, to the personal notes of H. G. Frost, to deeds of trust securing these notes, and to formal releases of the mineral leases on those portions of the lands not covered by the option agreement. All of these were tendered him. The mineral leases would have been automatically canceled by the exercise of the option, and the holder of those leases executed, and caused to be tendered to him, an instrument in writing agreeing that the leases should stand canceled and annulled by the exercise of the option. He obviously for some reason did not want to carry out the option agreement. It is not contended that the leases would have remained in force, or, if such contention is made, it is manifestly unsound, because the owner of the leases expressly agreed in writing that they should stand canceled and annulled by the exercise of the option. The situation might be different if Lockwood were not getting all that he is entitled to under the terms of the option agreement, but in what way can he possibly be prejudiced by being compelled to carry out his contract? Such delay as has been occasioned is the result of his own default, for the plaintiff promptly tendered performance of everything required of him, and the transaction would have been consummated long ago had not Lockwood declined to carry it out. In the event of the affirmance of the judgment the plaintiff will be required, within what must be conceded to be a reasonable time after the mandate is filed in the lower court, to pay the cash consideration into court and deliver to the clerk of the court the notes, deeds of trust, and other instruments in writing required to be delivered by him, and only in the event he does so will Lockwood be required to do anything. In other words, there will be no decree for specific performance, and no burden imposed upon Lockwood, if the plaintiff, within the reasonable time fixed by the court, does not perform the conditions precedent prescribed in the decree."

The judgment is affirmed.