## Facts

- Two landowners, J.C. Bescher and W.M. Bescher, as tenants in common, executed a written option under seal on June 18, 1917, granting C.E. Thomason the right to buy timber and related rights for $6,000 on or before August 18, 1917.
- The instrument recited receipt of $1 consideration, stated the sale was at Thomason’s option, and provided that failure to demand a deed and tender payment by the deadline would render the agreement null and void.
- The jury found the $1 recited consideration was not actually paid.
- Before June 23, 1917, Thomason notified a defendant that he would take the timber under the option and would come the next week to pay and receive the deed.
- On June 23, 1917, defendants served written notice stating the option was withdrawn and they would not convey under its terms.
- Plaintiffs remained able and willing to pay the price and tendered $6,000 on August 7, 1917, within the option period.
- J.F. Curry acquired a one-half interest in the option and joined as a co-plaintiff.
- The trial court entered judgment ordering specific performance; defendants appealed.

## Issues

1. Whether a sealed option to convey real property interests is enforceable and irrevocable during the stated option period when the nominal consideration recited for the option was not actually paid.
2. Whether plaintiffs’ notice, timely exercise of the option, and tender within the option period entitled them to specific performance despite defendants’ attempted withdrawal.

## Decision

- The Supreme Court of North Carolina affirmed the decree of specific performance.
- The court held that the sealed option was binding for the stated time even though no consideration was in fact paid.
- Defendants’ attempted revocation during the option term was ineffective.
- Because plaintiffs exercised the option and tendered the purchase price within the option period, defendants were required to convey as agreed.

## Legal Principles

- At common law, a sealed instrument imports consideration; lack of actual consideration is not a defense to enforcement of a covenant under seal.
- A written option under seal granting a right to purchase land or comparable real property interests within a fixed time is irrevocable during that time.
- When an optionee exercises a valid option within the required period and tenders performance, equity may compel conveyance by specific performance.

## Conclusion

A sealed option to convey timber rights remained enforceable and could not be withdrawn during its stated term, even though the nominal option consideration was not paid; plaintiffs’ timely exercise and tender supported specific performance compelling conveyance.


Thomason v. Bescher, 97 S.E. 654 (N.C. 1918)