THOMPSON v. WILKINSON

THOMPSON v. WILKINSON
1915 OK 208
148 P. 177
46 Okla. 115
Case Number: 4291
Decided: 04/27/1915
Supreme Court of Oklahoma

THOMPSON et al.
v.
WILKINSON et al.

Syllabus

¶0 1. APPEAL AND ERROR--Findings of Fact--Trial by Court--Evidence. Where a jury is waived, and issues, both of fact and law, are by consent submitted to the trial court, its finding will not be reviewed by this court, if there is evidence to sustain it.
2. VENDOR AND PURCHASER--Contract--Withdrawal--Option. Where an option is given to purchase property without consideration, it may be withdrawn at any time before performance, but this rule does not apply to a contract where the vendee binds himself to buy and the vendor to sell.
3. VENDOR AND PURCHASER--Contract to Purchase Land--Option. Where, in a contract to purchase land, the vendee agrees to pay the price when an order is obtained from the county court to sell the lands of certain minors, but the contract contains the further provision that such action by the county court shall be had in a reasonable time, or in three months, held, that such provision will be construed in connection with the agreement to pay the price, that is, within a reasonable time, or within three months.
4. VENDOR AND PURCHASER--Rights of Grantee--Priority--Actual Notice. Where a deed to the plaintiff was recorded prior to the deed to the defendant in error, but the court found that the plaintiff in error took the deed with actual notice of the rights of the defendant in error, held, under the provisions of section 888, Wilson's Rev. & Ann. St. 1903, the plaintiff in error took subject to the rights of the defendant in error.
5. OPERATION OF STATUTE. The question is not decided what effect, in such case, the amendment to section 888 by section 1154, Rev. Laws 1910, will have.

R. Y. Nance, for plaintiffs in error.
W. A. Chase and George B. Schwabe and O. C. Hough, for defendants in error.

DEVEREUX, C.

¶1 It is a well-settled rule in this state not requiring the citation of authority, that where there is evidence to support the findings of the trial court, where the cause is submitted to him to try both the issues of law and fact, his finding will not be disturbed. There was evidence in the record that the $ 900 was deposited in the bank of Stillwell to take up the deed for this land on the evening of the 24th or the morning of the 25th of October, 1911. The date of the deed to Patterson was October 25, 1911. Whether this money was deposited prior to the date of the deed to Patterson was a question of fact to the court. He saw the witnesses and heard the oral testimony, and, there being evidence to support his finding, it will not be disturbed by this court. This finding of the court also is direct that Patterson took the title from Thompson with actual notice of the rights of the defendants in error herein. It is true that the deed to Patterson was recorded prior to the deed of the defendants in error, but at the time this case was tried, the law in force in this state in regard to the recording of instruments (Wilson's Rev. & Ann. Stat. 1903, sec. 888) provides:

"Except as hereinafter provided, no acknowledgment or recording shall be necessary to the validity of any deed, mortgage, or contract relating to real estate as between the parties thereto; but no deed, mortgage, contract, bond, lease, or other instrument relating to real estate other than a lease for a period not exceeding one year and accompanied by actual possession, shall be valid * * * against third persons unless acknowledged and recorded as herein provided; except, actual notice to such third persons shall be equivalent to due acknowledgment and recording."

¶2 This statute was altered in Revised Laws of 1910, sec. 1154, by omitting therefrom the words "except, actual notice to such third persons shall be equivalent to due acknowledgment and recording." However, the laws of 1910 did not come into effect until May, 1913, and therefore can have no bearing upon the question under consideration. It is not necessary to decide, nor do we decide, what effect the omission of these words would have in case a party, having notice of a prior unrecorded deed, puts his deed on record first. This question is left open until it shall be directly presented. The district court having found that the purchase money for this tract of land was paid by the defendants in error to the Bank of Stillwell prior to the date of the deed to Patterson, and having further found that Patterson took with actual notice of the defendant in error's rights, the judgment will have to be affirmed. It has been decided, in a long line of cases, that one who proceeds with knowledge of such facts as will put a prudent man upon inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of rights claimed adversely to his vendor, is guilty of bad faith and is chargeable with actual notice. Cooper v. Flesner, 24 Okla. 47, 103 P. 1016, 23 L. R. A. (N. S.) 1180, 20 Ann. Cas. 29; Herbert v. Wagg, 27 Okla. 674, 117 P. 209. A multitude of cases could be cited to support this proposition, but it is so well settled as to become axiomatic that one who takes with notice of an equity takes subject to that equity. It is argued by the plaintiff in error that the provisions of this contract, by which the defendants in error reserve the right to themselves not to pay the purchase money until the county court had made the proper and legal order of sale of infant's lands, makes this contract executory, unilateral, without consideration, and without time limit, and therefore merely amounted to an offer made by Jesse B. Thompson to sell the lands in controversy to the defendants in error and that the same was withdrawn prior to acceptance. It is not doubted that in case of pure option without consideration, the party giving the option may withdraw it at any time before performance. But the contract in the case at bar was not an option. An option is where one party gives another the right within a certain time to purchase a certain article. The very meaning of the word is that the purchaser has the option to take the property or not. If he elects not to take it, he cannot be held. See Pollock v. Brookover, 60 W. Va. 75, 53 S.E. 795, 6 L. R. A. (N. S.) 403; Cummins v. Beavers, 103 Va. 230, 48 S.E. 891, 106 Am. St. Rep. 881, 1 Ann. Cas. 986. But in the case at bar the defendants in error were bound absolutely by this contract to purchase the land. It was not an option, but an agreement of purchase and sale. The argument of the plaintiffs in error that because the time of payment was withheld until the county court should order the sale of the minors' land makes the time of payment entirely indefinite, and as the county court may never order the sale that there is no time fixed within which defendants in error should pay the money. We think, however, that under any circumstances this would be construed to be a reasonable time, and the provisions of the contract in which Thompson binds himself to procure this order from the county court within a reasonable time, or within three months from the date of the contract, will be construed in connection with the provision of the contract in which the defendants in error fix the time of payment; that is, within a reasonable time, or within three months of the date of contract. The case of Graybill v. Brugh, 89 Va. 895, 17 S.E. 558, 21 L. R. A. 133, 37 Am. St. Rep. 894, is relied on by plaintiffs in error to establish the proposition that the contract and escrow deed in this case were not notice to Patterson, the purchaser from the Thompsons, and that he was not obliged to pay any attention to this agreement, although he had notice of it. The case is not in point considering the facts in this case. This was a case of pure option without consideration, and on page 898, of 89 Va., on page 559 of 17 S. E., on page 896 of 37 Am. St. Rep., the court say:

"The nominal consideration of $ 1 in the option, it is admitted, was never paid; and the option says: 'It is agreed by the parties hereto that there shall be no obligation upon the said E. J. Brugh by virtue of this agreement, unless within the period of * * * ten months he pays one-third of the purchase money.' He did not sign the option, and it did not bind him to do anything."

¶3 There is no authority where, as in the case at bar, the defendants in error had made an absolute contract to purchase the land, and their promise to pay the price was a consideration for the promise of the vendor to convey, nor in this case was there any such provision, as in the Graybill Case, that unless the purchaser paid one-third of the purchase money within 10 months, he should not be bound for anything. This was clearly a case of pure option without consideration. We have carefully examined the other cases cited in the brief of the plaintiffs in error, but none of them are authority that the seller has a right to terminate a contract of the kind under consideration here. There being no reversible error in the record, we recommend that the judgment below be affirmed.

¶4 By the Court: It is so ordered.