Newcomer v. Newcomer

A settlement agreement regarding a house and surrounding five acres of land was unenforceable, because time was of the essence and certain obligations were not met within that time.

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Charlie A. Newcomer, III, appeals from the trial court’s order dismissing his complaint, which sought to avoid the exercise of a real estate option. For the reasons that follow, we affirm. Mary Lynn Owens Newcomer died on March 23, 1976. Her will named her husband, Charlie A. Newcomer, Jr. “Newcomer, Jr.”, as executor, and placed her house and surrounding five acres of land into a trust, with the Fulton National Bank named as trustee. Her husband was to receive a life estate in the realty, the remainder to be held in trust for their two children, Charlie A. Newcomer, III and Mary Ellen McGuire. In 1978, Newcomer, Jr. married Nell L. Watson Newcomer “Ms. Newcomer”. Fulton National Bank never formally assumed management of the trust; Newcomer, Jr. handled the affairs of both the estate and the trust. In 1994, purportedly as “sole acting trustee,” he executed an option allowing Ms. Newcomer to purchase a life estate in the realty, at some time in the next five years; the option could be extended for another five years. Just prior to Newcomer, Jr.’s death in 1999, Ms. Newcomer extended the option. After the death of Newcomer, Jr., Charlie A. Newcomer, III and Mary Ellen McGuire were appointed co-trustees under the will of Mary Lynn Owens Newcomer.

In 2000, Ms. Newcomer attempted to exercise the option and purchase the life estate from the trustees. The trustees refused to honor the option or proceed with the sale, and filed suit “to remove cloud on title.” Ms. Newcomer answered and counterclaimed for specific performance, and the trustees “Newcomer, III”1 amended the complaint to include four counts2 ; cancellation of the option as a cloud on title, ejectment, a declaratory judgment that the option was null and void, and enforcement of a purported settlement agreement. The trial court denied Newcomer, III’s motion to enforce the purported settlement agreement; Newcomer, III also moved for summary judgment.

Newcomer v. Newcomer

A settlement agreement regarding a house and surrounding five acres of land was unenforceable, because time was of the essence and certain obligations were not met within that time.

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