Stanton, Hall and Gaulkin. The opinion of the court was delivered by Stanton, S.j.a.d.
The plaintiff brought this action for partition, accounting and incidental relief against Cunningston D. Black, hereinafter referred to as C.D., and his wife. He alleged that he had title to an undivided seven-ninths interest in the lands described in the complaint by virtue of conveyances made to him by the widow and children of Leo H. Black. The defendants challenged the plaintiff's title and alleged that C.D. had an option to purchase the lands under an agreement dated November 1, 1934 which will be discussed later and also a contract with the executrices under the will of Leo H. for the purchase of said lands, and that the plaintiff took his legal title subject to the rights of C.D. under these agreements. The defendants demanded that the plaintiff and his wife convey the lands to them upon the payment of seven-ninths of the option price and in the alternative that they convey the same upon the payment of the contract price to the executrices under the will of Leo H. There were other demands for relief which need not be detailed here.
The defendants filed a third-party complaint against Faythe R. Black and Marion S. Black, individually and as executrices of the estate of Leo H. In it is expressed the right of C.D. to a conveyance of the lands under the agreement of November 1, 1934, but in the event of his failure to obtain it he demanded specific performance of his contract with them or in the alternative damages of $30,000
from Faythe individually. Thereafter Faythe, individually and as executrix as aforesaid filed a third-party complaint against her two children and her stepdaughter, who were the only children of her deceased husband Leo H., in which she sought exoneration from any judgment that might be entered against her in favor of C.D. and his wife, and an accounting by her stepdaughter Dorothy of any money she received under the April 1, 1951 contract. Several crossclaims and counterclaims were filed which need not be discussed here, and the matter came to pretrial conference, at which an order was entered which provided, inter alia , for the filing of further pleadings. Later there was a supplemental pretrial conference at which an order was entered setting forth the rival contentions and all the issues in the case. Provision for the further amendment of certain pleadings was made at this conference.
In the supplemental pretrial order we find this provision:
"It is suggested that the validity of the option and contract held by Cunningston D. Black should be determined first at the trial and that the evidence bearing on this question should be offered by both sides so that this matter can be disposed of prior to the determination of the other issues in the case."
At the end of the three day trial, an oral decision was given by the court on the three issues that were tried. The other issues were reserved. At the time of the rendition of this decision it was apparently thought by counsel that it might lead to a settlement of the other issues and thereby bring the entire controversy to an end. However, things did not work out that way and about nine months later judgment was entered upon the court's conclusions. It was determined therein that the so-called option agreement of November 1, 1934 was invalid and unenforcible; that the deed of Faythe to C.D. and his wife dated January 11, 1947 was a valid conveyance; and that the defendants were entitled to the specific performance of the contract of April 1, 1951. The judgment declared that the defendants held an undivided two-ninths interest in the premises by virtue of
the conveyance from Faythe and that they were entitled to a conveyance by the surviving executrix of Leo H. of the remaining undivided seven-ninths interest. The judgment reserved for future disposition all the remaining issues in the case following the completion of the proofs.
The plaintiff appealed from the judgment but his argument is directed only against the determination as to the validity and specific performance of the contract of sale. C.D. and his wife cross-appealed from that part of the judgment respecting the so-called option in the agreement of November 1, 1934.
Some underlying facts which are not in dispute perhaps should be set forth here for background purposes. Alice W. Black died seized of two farms in 1914. She was survived by 11 children. In her will she devised her farms to three sons, Colin, Leo H. and Frank. She bequeathed the sum of $700 to each of the other children and charged the farm known as the homestead farm with the payment of the same. The will acknowledged that all of the personal property, farm utensils, farming implements and machinery, as well as the live stock on the farm, belonged to the three sons to whom she devised the farms. It appeared that these sons were working the farms at the time of her death and that Frank and Leo H. continued to do so down to the time of the death of Frank, intestate and unmarried, on September 9, 1933. He was survived by eight brothers and sisters. His brother George and sister Alice predeceased him, intestate and without issue. Some time prior to Frank's death Colin had left the farms and sold his interest therein to Leo H. and Frank. Although there was no deed to evidence the transfer of title, all parties in this action concede that to be the fact and it was accepted as such at the time of Frank's death by Colin. C.D. was appointed administrator of Frank's estate. In connection with the settlement of his estate the November 1, 1934 agreement mentioned above was entered into. The parties to this were as follows: C.D. as administrator of the estate of Frank, party of the first part; Leo H., party of the second part; Colin, party of
the third part; the eight surviving brothers and sisters of Frank, parties of the fourth part. The agreement recites that Frank and Leo were engaged in the farming business, that at the time of Frank's death he and Leo had certain obligations in connection with the said business, and that the agreement was entered into to settle his estate and the partnership business conducted by him and Leo. There are many promises and undertakings by each of the parties, some of which need not be mentioned here. It should be noted that C.D. as administrator was to pay out of the proceeds of insurance policies on the life of Frank in the sum of $6,000 the following: $2,500 note of Frank held by a bank, and all indebtedness, taxes, funeral expenses, and legal and administration expenses in connection with the settlement of Frank's estate. He was to deliver to Leo H. a bill of sale for all the right, title and interest of Frank in all personal property situate on the farms operated by Leo H. and Frank at the time of the latter's death. Colin by the agreement was required among other things to execute and deliver all necessary instruments for the transfer to Leo H. of any interest he had in the personal property on the farms aforesaid and to execute and deliver to Leo H. and his sister Marion such deeds as may be necessary to transfer to each of them that portion of the farms which were to be conveyed to them by the terms of the agreement. The parties of the fourth part were to execute and deliver to Leo H. a deed for the farm known as the Black Homestead and that part of the Westbrook farm which is known as the island lands, together with certain water rights in the other part, and to convey to Marion the remaining part of the Westbrook farm subject to the water rights above mentioned. Leo H. agreed among other things to pay all the outstanding indebtedness of the partnership business and he gave what has been referred to in this case by some of the parties as the option, in the following language:
"5. If at any time hereafter he, or his heirs, decide to sell the said Black Homestead Farm, or such portion of the Westbrook Farm as is to be conveyed to him under the terms of this agreement, he will
for a period of six months prior to such sale, give to the parties of the fourth part in this agreement, or their survivors, the right and option to purchase said premises at the sum of Six Thousand Five Hundred Dollars ($6,500.00); said purchase to be paid one-half in cash and the balance by executing a purchase money mortgage for a period of at least three years with interest at the then prevailing rate.
It is the intention of the parties that this option shall be binding upon the heirs, executors, administrators and assigns of Leo Black, and is to be exercised primarily by the survivors of the parties of the fourth part. If the parties of the fourth part cannot agree as to the purchaser or purchasers, then this option shall be successively available first, to a majority of the survivors of the parties of the fourth part; second, to Colin Black; and third, to the individual survivors of the parties of the fourth part in the order of seniority.
This option shall expire with the death of the last survivor of the parties hereto.
The said Leo Black and Faythe Black, his wife, will execute an agreement contemporaneous herewith granting the above option to the parties of the fourth part hereto."
It might be noted here that Leo and his wife Faythe did not execute the agreement which was apparently ...