Frederic v. Merchants & Marine Bank
| Decision Date | 27 January 1947 |
| Docket Number | 36314. |
| Citation | 28 So.2d 843,200 Miss. 755 |
| Court | Mississippi Supreme Court |
| Parties | FREDERIC et al. v. MERCHANTS & MARINE BANK. |
H. W. Gautier, of Pascagoula, for appellants.
Ford & Ford, of Pascagoula, for appellee.
This is a suit in chancery brought by the appellants, Mr. and Mrs. W E. Frederic, against the appellee, Merchants and Marine Bank of Pascagoula, Mississippi, to compel the actual and manual delivery of a deed of conveyance executed by the defendant Bank in favor of the complainant, Mrs. W. E. Frederic, on May 22, 1942, and placed in the vault of the bank after its execution and the purchase price paid, for a certain lot which was then vacant and located on the beach front some distance east of the corporate limits of the City of Pascagoula; or that in the event the said original deed could not be produced and delivered unto the grantee, a like deed be ordered executed and delivered in its stead. The bill of complaint also prayed for injunctive relief to restrain the defendant Bank from interfering with certain construction work which was under way on the lot in March 1944, when the suit was filed.
The bank filed an answer denying that there had ever been any delivery of the deed, and a cross-bill asking for a rescission of the transaction, on the ground that a yacht club and bathing pavilion were being construction on the lot in violation of the terms of the sale thereof.
The trial court denied to the complainants the relief prayed for and also denied the relief sought by the cross-bill, but ordered the execution and delivery of a deed by the bank with a restriction therein to conform to a certain resolution or recitals which had been entered on the minutes of the board of directors of the bank prior to the execution of the original deed.
It appears from the proof that prior to the sale the defendant Bank, as owner of the vacant lot, was desirous of disposing of some realty assets to conform to the requirements of the State Banking Department in that behalf; that the Ingalls Shipbuilding Corporation acquired about 1900 feet of vacant beach frontage, on which there were no improvements except one ante-bellum home, and which frontage extended from within the corporate limits of the City of Pascagoula to about 1300 feet east thereof; that the Bank had sought to sell to Mr Ingalls the lot in question, having a frontage of seventy-five feet along the beach and located east of the Ingalls' tract, but that its negotiation in that behalf had failed; that on April 7, 1942, W. E. Frederic submitted an offer to purchase this lot for $1,500 and delivered to the bank his check for $100, with a notation thereon reading 'In payment for lot on beach front, balance $1,400 to be paid as approved;' and that on the next day the board of directors met, and after consideration of the offer, adopted the following resolution or recitals and spread the same on the minutes:
'The President called the Board's attention to the banking department's reference to real estate and suggested that effort be made to sell off some of same mentioning that he had written Mr. Ingalls several times in reference to the L. A. Watts lot on beach front, however with no results.
'Definite application for purchase of the Watts lot by W. E. Frederic was submitted with a check for $100.00 attached as initial payment on offer of $1500.00 cash for the lot, Mr. Frederic agreeing to pay the balance in cash as soon as the bank delivered deed to him, and he further explained that the lot would be used to build a home and he expected further to add some tourist cottages, which he said would be well built and operated properly.
'The Board after consideration on motion duly seconded approved sale of the lot to W. E. Frederic for $1500.00 cash instructing that deed be delivered to him for the property and payment accepted.'
The proof further discloses that following the entry of the foregoing on the minutes of the board of directors, and the approval of such minutes on May 13, 1942, the attorneys for the bank, at the request of the president, prepared a deed in favor of Mrs. W. E. Frederic for this lot, in compliance with the request of Mr. Frederic that she be named as grantee therein, together with a deed to Mr. Frederic for another lot which was located on Market Street and which he had theretofore purchased from the bank and improved; that these two deeds, containing proper revenue stamps, were both duly executed on May 22, 1942, the $100 check was cashed, and Mr. Frederic was thereupon notified of the execution and readiness of the deeds for delivery; and that at some time shortly following this notification, Mr. Frederic called at the bank and paid the remaining $1400 on the purchase price of the lot in question, having theretofore paid the full amount due on the other lot. That both deeds were thereupon placed in the vault at the bank where they remained until Mr. Frederic commenced the construction of the yacht club and bathing pavilion near the water's edge of the said lot in February 1944. He was then notified that the title of this lot still remained in the bank, and he was requested by letter to cease further construction and vacate the property, on the ground that he had thus breached his contract of purchase.
In the meantime, beginning in the year 1942, the Frederics had constructed, with the knowledge and without objection of the bank, three tourist cottages on the lot in question at a cost of approximately $6,000, including the work which had been done on the yacht club and bathing pavilion prior to the filing of this suit.
When the deed was prepared in May, 1942, the president of the bank requested its attorneys not to place any restrictions in the deed, pursuant to his oral agreement with the purchaser who feared that such a restriction might interfere with a resale of the lot in the future; and then, contrary to the advice of the attorneys, the deed was thus prepared and executed and placed in the bank vault for the Frederics without any limitations on restrictions contained therein.
It is the contention of the appellee that there was no delivery of the deed and that therefore the bank is entitled to withhold the same in view of the...
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