Abraham v. Harvey
| Decision Date | 17 December 1962 |
| Docket Number | No. 42418,42418 |
| Citation | 245 Miss. 449,147 So.2d 639 |
| Parties | Joseph ABRAHAM v. Mrs. Mary Ruth Royles HARVEY. |
| Court | Mississippi Supreme Court |
Ralph L. Landrum, Jackson, for appellant.
Noel W. Buckley, B. R. Hardin, Jackson, for appellee.
This case came to this Court from the Chancery Court of the First Judicial District of Hinds County, Mississippi, in which Mrs. Mary Ruth Royles Harvey filed an original bill against appellant, Joseph Abraham. She sought a decree from the chancery court requiring defendant to convey to her by warranty deed title to certain real property which she had verbally contracted to purchase, or, in the alternative, she requested that she be given judgment against Joseph Abraham for money paid to him on the purchase price for property, for money expended to improve the property purchased, and also funds advanced to establish a business upon the purchased property. Defendant in the court below filed a general demurrer to the bill, in which he alleged that there was no equity on the face of it. The chancellor overruled the demurrer, and defendant filed an answer and a cross bill, in which he alleged that the cross-defendant, appellee here, refused to carry out the agreement to purchase the property and that such failure resulted in his loss of the property by foreclosure. He charges that he was damaged in the sum of $5,000. The cross-defendant filed her answer denying the cross-bill, whereupon the case was submitted to the chancellor upon pleadings, and oral and written evidence, resulting in a judgment in favor of appellee in the sum of $2,032.25, together with 6% interest from the date of the decree.
The facts in this case are as follows: Mr. and Mrs. Herman Harvey are natives of California. Mrs. Harvey had been previously married to a Mr. Royles and had inherited some property from him. She was desirous of investing this money in a business in an effort to 'make a new life for her children.' Mr. and Mrs. Harvey discovered that appellant had some property he desired to sell for the sum of $20,000. He asked that $4,000 be paid down but Mrs. Harvey could raise only $1,000, and he consented to take $1,000 provided that they would execute two notes, one for the remainder of the balance of the purchase price, and the other for the balance of the down payment, which amounted to $3,000. Mr. and Mrs. Harvey agreed to this but on March 22, 1961, defendant tendered appellee only one promissory note in the sum of $19,000, and a trust deed on the property to be signed by Mrs. Harvey. She paid appellant, Abraham, $1,000 and executed the deed of trust and note for the sum of $19,000. Mr. and Mrs. Harvey testified that Mr. Abraham told them that he had paid spot cash for the property and that there was nothing against it. Later, when Mrs. Harvey wanted to buy an ice cream machine, she went to Mr. Abraham in an effort to secure a $1,500 loan on her equity in the property. When Mr. Abraham would not make the loan, she went to the White System and was advised that there was a prior trust deed on the property to a third party and that she did not have a deed. Appellee again went to Mr. Abraham in an effort to secure the deed but he would not give her a deed to the property. He did, however, return the note and trust deed given him by Mrs. Harvey. The record shows that he later had his attorney write appellee and advise her that he would deliver a deed to the property provided she would return the trust deed and note. Appellee employed an attorney and filed this suit.
The testimony shows that after having made the initial payment, appellee later paid appellant an installment in the sum of $175.70. Appellee went into possession of the property and proceeded to remodel the building and do extensive repairs to the plumbing and interior, and repair equipment located therein. She also purchased machines to be used in the business, and opened a sandwich and soft drink establishment. She charged that it was necessary to purchase a license to operate, and to purchase certain personal property to be used in the business. Appellee introduced a list of items showing expenditures, and for personal property used in the business for which she sought recovery of appellant. The chancellor allowed the $1,000 originally paid and the $175.70 installment and other items claimed, but denied recovery for some items, which will be mentioned later.
There are two assignments of error presented for our consideration: (1) The general demurrer to the amended bill should have been sustained; and (2) the findings of the court below were contrary to the law and evidence.
The answer filed by defendant to the original bill stated 'Respondent most respectfully charges that the oral agreement with reference to the sale of land is contrary to the statute of frauds and contrary to the laws of the State of Mississippi', but it is not argued that the demurrer should have been sustained upon the ground that the original bill sought specific performance of an oral contract in violation of the statute of frauds. The argument presented here is based upon the proposition that under the allegations of the original bill, the complainant did not offer to do equity by offering to deliver to Mr. Abraham the property then in her possession, that (a) equity looks to intent and will regard substance rather than form, (b) he who comes into equity must have clean hands, and (c) he who seeks equity must do equity.
The argument for appellant is, in effect, that demurrer to the original bill should have been sustained because the original bill filed by appellee did not show that she had delivered possession of the property to defendant, nor did it show that she was willing to put appellant, defendant in the court below, into possession of the property; therefore action could not be maintained since it did not offer to do equity. We do not believe this rule is applicable under the facts in this case, but if the rule were applicable, the facts in evidence would clearly bring this case under the following exception to the rule '* * * if the agreement of sale is absolutely void, the vendee need not restore or even offer to restore possession of the land as a condition of becoming entitled to the return of money paid.' 55 Am.Jur., Vendor and Purchaser, Sec. 610, p. 1003; see also Secs. 607-609, pp. 1000-1002. Cf. 91 C.J.S. Vendor and Purchaser Sec. 170, p. 1130.
The cause of action brought by appellee is not a suit to rescind the verbal contract, but is actually a suit to enforce it, or in the alternative, to require defendant, appellant here, to pay the money received as a result of his refusal or inability to convey a clear title to the property sought to be purchased, and for damages arising out of the deceit practiced. It will be remembered that the chancellor held as a matter of fact that appellant told appellee that he had paid 'spot cash' for the property here involved, and that there was nothing against the property, when, as a matter of fact, there was a large purchase-money mortgage on the property due by appellant to a third person.
It has been pointed out by the textwriter of 4 Am.Jur., Assumpsit, Sec. 27, p. 517, that: See also 58 C.J.S. Money Received Sec. 14, p. 923.
The case of Milam v. Paxton, 160 Miss. 562, 134 So. 171, is similar to the case now before the Court. In this case a suit was filed to require defendant in the court below to deed certain real property to complainant and prayed for general relief. It was alleged that defendant had verbally promised to deed the land in question to complainant, that complainant had paid part of the purchase money to defendant, and that although defendant continued to promise to deed the property to complainant, the deed was never delivered. The defendant filed two demurrers to the bill, a general demurrer alleged that there was no equity upon the face of the bill, and a special demurrer set up the statute of limitations as a defense. The chancellor sustained both demurrers and dismissed the bill. This Court reversed the judgment of the chancery court and pointed out that .
In the case of Tchula Commercial Co. et al. v. Jackson, 147 Miss. 296, 111 So. 874, this Court pointed out that: ...
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