American Oil Co. v. Williamson

• Decision Date: 27 May 1929
• Docket Number: 27871
• Citation: 122 So. 488,154 Miss. 441
• Court: Mississippi Supreme Court
• Parties: AMERICAN OIL CO. v. WILLIAMSON

122 So. 488

154 Miss. 441

AMERICAN OIL CO. v. WILLIAMSON

No. 27871

Supreme Court of Mississippi

May 27, 1929

Division A

1 DEEDS. Grantee cannot have relief for restrictions in deed unknown when accepted; his failure to read not being induced by fraud of grantor.

Grantee though not knowing, when he accepted deed, of restrictions therein on use of the property, can be granted no relief on that account; his failure to read the deed not having been induced by any fraud of grantor.

2 DEEDS. Restrictions in deed, if void, do not affect title conveyed. Restrictions in deed on use of property, whether merely restrictions or a condition, if invalid and void, do not affect title conveyed, being simply unenforceable.

3. MORTGAGES. Mere offer of mortgagee to return notes if mortgagor would return property is no defense to deficiency action.

It is no defense to deficiency action, after foreclosure under deed of trust securing purchase-money notes, that mortgagee offered to surrender the notes, if mortgagee would return the property bought, this offer having been met by a counteroffer, and it not being disclosed that any such agreement was made, or, if made, that mortgagee was placed in default by tender to it of deed by mortgagor.

Appellee's Motion to Dismiss Appeal Overruled May 27, 1929.

APPEAL from circuit court of Lamar county.

HON. J. Q. LANGSTON, Judge.

Action by the American Oil Company against C. L. Williamson. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

Reversed.

Hannah & Simrall, of Hattiesburg, for appellant.

The appellant and the appellee never made any sort of an agreement in regard to the settlement of this case. About November 1, 1927, the appellant made a verbal offer to the appellee to cancel the indebtedness if the appellee would convey the property to the appellant. The appellee promptly made a verbal rejection to this offer. When the appellee did so, then the offer was terminated. When the appellee went to the appellant on January 2, 1928, and offered to convey the property to the appellant in consideration of the cancellation of the indebtedness, the appellee was not then accepting the appellant's offer, but was making a new offer to the appellant, which the appellant was at liberty to either accept or reject. The testimony is undisputed that the appellant very promptly and very positively rejected this offer.

6 Ruling Case Law, page 603.

The appellee accepted the deed when it was tendered to him and had it recorded and went ahead operating the filling station under it. It is true that the appellee testified that he did not read the deed in full at the time it was delivered to him, but this can have no effect whatever on the rights of the parties. The appellee was able to read, and the law imposed the duty on him of reading the deed and informing himself as to its contents before he accepted it.

A. Q. Broadus, of Purvis, for appellee.

When appellee discovered that the deed which he had was really and in fact not a deed but was a contract of sale and one which left the control of the lot in question in the hands of appellant, appellee became dissatisfied and refused to pay the notes before the first one became due.

Shortly thereafter appellant proposed to surrender the notes of appellee and cancel his indebtedness if appellee would surrender the property in question to it, but appellee wanted the appellant to pay him one hundred and fifty dollars for labor and improvements which he had put on the property in question which appellant refused to do. This proposition of appellant for the cancellation of the indebtedness for the property back appellee understood to be a standing offer and therefore appellee shortly thereafter moved off of the property in question and surrendered the same in favor of the appellant.

OPINION

SMITH, C. J.

The appellant conveyed to the appellee a lot in the town of Lumberton by a deed which was accepted and recorded. The greater portion of the purchase money was not paid on delivery of the deed, but promissory notes therefor were executed and delivered by the appellee to the appellant and were secured by a deed of trust on the property. Default having been made in the payment of these notes, the deed of trust was foreclosed, and the land was purchased by the appellant for considerably less than the amount of the notes secured by the deed of trust. This suit is by the appellant to recover the balance due by the appellee on the notes, and there was a judgment for the appellee. One of the appellant's assignments of error is that the court below erred in overruling its request for a directed verdict.

...