#### R. F. CROTTS AND G. L. CROTTS v. J. B. THOMAS and Wife, MRS. J. B. THOMAS.

(Filed 22 May, 1946.)

1. Seals § 4—

Instruments under seal require no consideration to support them.

2.Vendor and Purchaser § 5a—

An option in a lease, which gives the lessee the right to purchase the leased premises at any time before the expiration of the lease, is a continuing offer to sell on the terms set forth in the option, and may not bo withdrawn by the lessor within the time limited.

3. Vendor and Purchaser § 3—

The lease is a sufficient consideration to support specific performance of the option to purchase granted therein.

4. Vendor and Purchaser § 19a—

Where the purchaser is ready, able and willing to pay the price stipulated, and notifies the vendor of his election to exercise the option, the vendor is under duty to prepare and tender good and sufficient deed, and the purchaser is not required to tender the purchase price before delivery of the deed.

5. Vendor and Purchaser § 8— *

The option in suit described the *locus in quo*by metes and bounds, containing “30 acres more or less,” and provided for the payment of a stipulated price per acre. *Held:*The description was sufficiently definite, since in the event of any real controversy as to the acreage contained therein the maxim *id certum est quod certum reddi potest,*applies, and upon tender by the purchaser of the purchase price for 30 acres plus a sum to take care of any overage, the vendor’s contention that the acceptance was not in accord with the offer is untenable.

*3866. Vendor and Purchaser § 7—

Where an option obligates the vendor to sell at a price to be agreed upon but not to exceed a stated sum, such sum may be accepted by the optionee as the purchase price without further negotiation.

Appeal by plaintiffs from *Armstrong, J.,*at February Term, 1946, of StaNLy.

This is an action .for specific performance.

On 8 August, 1935, J. B. Thomas, who was then unmarried, leased to the plaintiffs for a period of ten years, beginning 1 January, 1936, for an annual rental of $200.00, a tract of land described by metes and bounds, situate in Stanly County near the City of Albemarle, containing 30 acres more or less. The lease provided for the rent to be payable $100.00 on or before 1 July, 1936, and $100.00 on or before the first days of January and July of each year thereafter, during the term of the lease. The rent has been paid through 1 July, 1945.

The plaintiffs leased the property for the purpose of establishing and maintaining a golf course thereon. A golf course was laid out and used as such until about two years ago; when, on account of the war, it was discontinued temporarily.

The lease contained an option in the following language: “It is understood and agreed and the said J. B. Thomas, party of the first part, does hereby specifically agree that at any time after the signing of this indenture, during the term of this lease, that he will sell and convey by a good and sufficient deed the lands herein described to the parties of the second part, their heirs and assigns, at a price to be agreed upon, which price in no event shall be more than at the rate of $150.00 per acre for said land and to the performance of this agreement, the said J. B. Thomas, party of the first part does hereby bind himself, his heirs, executors and administrators.”

The lease was executed under seal, duly acknowledged and recorded in the office of the Register of Deeds for Stanly County on 12 August, 1935.

In April, 1945, the plaintiffs notified the defendants of their intention to exercise the option to purchase the property and on 7 July, 1945, the plaintiffs tendered $4,500.00 to the defendants as the purchase price of 30 acres and an additional $750.00, to cover any excess in the acreage which might be determined by a survey. The defendants have at all times refused to convey the property to the plaintiffs.

At the close of plaintiffs’ evidence, the defendants moved for judgment as of nonsuit. The motion was granted, and the plaintiffs appeal to the Supreme Court, assigning error.

*387*W. L. Mann, Helms & Mulliss, and Brown & Mauney for plaintiffs.*

*Morton & Williams and R. L. Smith & Son for defendants.*

Denny, J.

Tbe plaintiffs challenge tbe correctness of bis Honor’s ruling in sustaining tbe defendants’ motion for judgment as of nonsuit.

Tbe defendants contend tbe judgment below should be sustained for tbe following reasons : (1) Tbe option was not supported by a consideration; (2) tbe offer was withdrawn; (3) acceptance was not in accord with offer; and (4) tbe option is too indefinite as to tbe sale price, to be enforceable.

It is tbe law in this jurisdiction that instruments under seal require no consideration to support them. *Thomason v. Bescher,*176 N. C., 622, 97 S. E., 654; *Samonds v. Cloninger,*189 N. C., 610, 127 S. E., 706; *Basketeria Stores, Inc., v. Indemnity Co.,*204 N. C., 537, 168 S. E., 822; *Coleman v. Whisnant, ante,*258, 37 S. E. (2d), 693. “At common law a promise under seal, but without any consideration, is binding because no consideration is required in such a case, or, as is sometimes said, because tbe seal imports, or gives rise to a presumption of consideration. It has been said that tbe solemnity of a sealed instrument imports consideration or, to speak more accurately, estops a covenantor from denying a consideration except for fraud.” 12 Am. Jur., 567, citing many authorities, among them, *Thomason v. Bescher, supra;*2 A. L. R., 626; *Kaplan v. Suher,*254 Mass., 180, 150 N. E., 9, 42 A. L. R., 1142; and *Storm v. U. S.,*94 U. S., 76, 24 L. Ed., 42.

In April, 1945, tbe plaintiffs informed tbe defendants of their intention to exercise tbe option contained in tbe lease. Tbe defendant, J. B. Thomas, at that time, informed tbe plaintiffs that be did not want to sell and that be would not make a deed for tbe *locus in quo.*

An option in a lease, which gives tbe lessee tbe right to purchase tbe leased premises at any time before tbe expiration of tbe lease, is a continuing offer to sell on tbe terms set forth in tbe option, and may not be withdrawn by tbe lessor within tbe time limited. Tbe lease is a sufficient consideration to support specific performance of tbe option of purchase granted therein. *Pearson v. Millard,*150 N. C., 303, 63 S. E., 1053; *Thomason v. Bescher, supra; Willard v. Taylor,*75 U. S., 557, 19 L. Ed., 501, 49 Am. Jur., 141, sec. 120. Moreover, tbe real consideration in an agreement to convey land is tbe contract price. *Ward v. Albertson,*165 N. C., 218, 81 S. E., 168.

Tbe third contention of tbe defendants is to tbe effect that since tbe *locus in quo*was described by metes and bounds as containing 30 acres more or less, tbe tender of $4,500.00 for 30 acres and $750.00 to cover any excess in tbe acreage which might be determined by a survey, tbe acceptance was not in accord with tbe terms of tbe option. There is no *388merit in this contention. Tbe plaintiffs were not required to make tender. Tbe defendants stated in open court for tbe record, at tbe trial below, as well as in tbeir answer wbieb was introduced in evidence, tbat they have at all times refused to execute a deed to tbe plaintiffs in response to tbeir notice and demand for sucb deed. *Phelps v. Davenport,*151 N. C., 22, 65 S. E., 459; *Gallimore v. Grubb,*156 N. C., 575, 72 S. E., 628; *Gaylord v. McCoy,*161 N. C., 686, 77 S. E., 959; *Cunningham v. Long,*186 N. C., 526, 120 S. E., 81. Therefore, when tbe plaintiffs notified tbe defendant, J. 13. Thomas, of tbeir election to purchase tbe property at $150.00 per acre, if tbe plaintiffs were ready, able and willing to pay tbat sum for tbe property, it was tbe duty of tbe defendants to prepare and tender a good and sufficient deed for tbe correct acreage contained within tbe boundaries set forth in tbe option. *Phelps v. Davenport, supra; Henofer v. Realty Co.,*178 N. C., 584, 101 S. E., 265 ; 153 A. L. R., 13 N; *Duffy v. Phipps,*180 N. C., 313, 104 S. E., 655; *Patrick v. Worthington,*201 N. C., 483, 160 S. E., 483, and since tbe *locus in quo*is described by metes and bounds if there is any real controversy as to tbe acreage contained therein, tbe maxim *id cerium est quod cerium reddi potest*applies. *Peel v. Calais,*223 N. C., 368, 26 S. E. (2d), 916.

Tbe fourth contention of tbe defendants tbat no price has been agreed upon, is likewise without merit. Tbe defendant, J. B. Tbomas, who at tbe time of tbe execution of tbe lease and option was unmarried, bound himself, bis heirs, executors and administrators, to convey tbe *locus in quo*to tbe plaintiffs at any time during tbe term of tbe lease, “at a price to be agreed upon, which price in no event shall be more than at tbe rate of $150.00 per acre for said land.”

In an option to purchase at a price to be agreed upon, but not to exceed a stated sum, sucb sum may be accepted by tbe optionee as tbe purchase price without further negotiations. 49 Am. Jur., 41, 117 A. L. R., 1097 Anno.; *Wright v. Kaynor,*150 Mich., 7, 113 N. W., 779; *Kastens v. Ruland,*94 N. J. Eq., 451, 120 A., 21; *Heyward v. Willmarth,*87 App. Div., 125, 84 N. Y. S., 75; *Hunter v. Farrell,*42 N. B., 323, 14 D. L. R., 556; *Condon v. Arizona Housing Corp.*(Ariz.) (25 June, 1945), 160 Pac. (2d), 342.

For tbe reasons herein stated, tbe ruling of tbe court below in sustaining tbe defendants’ motion for judgment as of nonsuit, is

Reversed.