Atkinson v. Sinnott

• Decision Date: 10 March 1890
• Citation: 7 So. 289,67 Miss. 502
• Court: Mississippi Supreme Court
• Parties: WILLIAM ATKINSON v. A. D. SINNOTT

7 So. 289

67 Miss. 502

WILLIAM ATKINSON v. A. D. SINNOTT

Supreme Court of Mississippi

March 10, 1890

FROM the chancery court of Pike county, HON. LAUCH McLAURIN Chancellor.

The lot mentioned in the pleadings upon which is situated the residence of Sinnott and wife, containing about three acres which was excepted in the conveyance to Atkinson, is situated about the middle of the tract so conveyed, and is entirely surrounded by it. The court below refused to cancel the instrument, and entered a decree in favor of Mrs. Sinnott enforcing a lien for $ 1500 and interest. The defendant Atkinson, conceded the right of complainant to a decree for $ 1000, the purchase-money of the land mentioned in the deed other than the residence lot, and paid that sum into court. From the decree fixing a lien on the whole of the land for the $ 1500 and interest, he prosecuted this appeal. Thereupon, as he appealed, the complainant, Mrs. Sinnott, [her husband having died] prosecuted a cross-appeal, assigning for error the action of the court in refusing to cancel the deed to Atkinson.

The other facts necessary to an understanding of the case are stated in the opinion of the court.

Decree reversed and cause remanded.

W. P. Cassedy, for appellant, Atkinson.

The theory upon which the bill in this case was filed, was that the deed was obtained by fraud. That is now practically abandoned, and the sole questions are, [1] whether the deed expresses the contract between the parties; [2] whether it conveys the whole of the land for $ 1500. The sworn answer meets the allegations of the bill as to the fraud in obtaining the deed, and on this issue the testimony is clearly with the defendant. Atkinson, without objection, was admitted into possession, and Mrs. Sinnott was present and assisted in giving directions when the iron posts were placed, marking the boundary of the residence lot. The evidence shows her to be a shrewd, intelligent person, not likely to be imposed upon. It is a mere assumption of counsel that the deed does not express the intention of the parties. Nothing was misunderstood by either. Not until after Atkinson had erected costly improvements on the land is complaint made.

2. If the object had been to convey all the land, there would have been no need of an exception, and no need of iron posts. The true construction of the instrument is that Atkinson bought all the land except the residence lot, and he was given an option to purchase this "upon" payment of $ 500.

It is a general rule of construction that effect must be given to every part of the contract, if possible, and the intention of the parties is to be gathered from the entire instrument. Goosey v. Goosey, 48 Miss. 210.

S. E. Packwood, on the same side.

1. By a proper construction of the deed, Atkinson secured title to all the land, exclusive of the residence lot, for $ 1000, with the privilege of purchasing the latter for $ 500. The deed itself, as well as the testimony, shows clearly that it was not the intention of the parties to convey the residence, and Atkinson never obligated himself to buy it. The deed conveys absolutely the other land, and he gave his note only for $ 1000. Why all this circumlocution if he was to buy the whole place for $ 1500? The deed should be construed to effectuate the intention of all the parties. Melick v. Pidcock [N. J.], 6 Am. St. R. 901; Kelley v. Calhoun, 95 U.S. 710; Roe v. Tenmarr, Willes. 682.

When the words are doubtful, the circumstances attending the execution of the instrument may be considered. The strongest words in the present tense will not pass a legal estate if other parts of the instrument show that such was not the intention of the parties. Phillips v. Swank [Pa.], 6 Am. St. R. 692; 3 Washb. on Real Prop., page 330, § 21.

Where words are doubtful, they shall receive that construction which will carry out the obvious purpose and intention of the instrument as a whole.

2. It is not true that the instrument failed to carry out the intention of the parties. It is clearly shown that the object was to sell all the land except the homestead for $ 1000, and the language of the deed effectuates this.

3. The testimony is wholly insufficient to show any fraud or imposition. The parties acted intelligently in the negotiation, and Atkinson was admitted into possession and allowed to make valuable improvements without complaint. He tendered the $ 1000 when due, and has kept the tender good. We ask a decree here in his favor as to the land purchased by him, and that complainant's bill be dismissed, with costs.

R. H. Thompson, for appellee, Mrs. Sinnott.

1. The testimony sustains the allegation of the bill on the question of fraud and imposition. But the deed, as written, falls so far short of expressing the intention of either of the parties, even as claimed by Atkinson, that it should be annulled. The excepted lot is entirely surrounded by the land conveyed to Atkinson, and no right of way over the latter is reserved. Clearly the parties did not intend this result. Then, again, the words in the last clause of the deed operate plainly as a present conveyance of the residence lot, and this was never intended. The minds of the contracting parties failed to meet. There was no aggregatio mentium.

2. The court, and not the pleader, is to construe the deed. If this instrument is not cancelled, it should be enforced as a whole, and not in part merely. This view was taken by the court below, and appellee would not be displeased if the decree should be affirmed. The claim that Atkinson was entitled to buy the residence or not at his pleasure, hangs on too slender a thread.

OPINION

COOPER, J.

Mrs Sinnott exhibited the bill in this cause against Atkinson to cancel a deed she had made to him, as obtained by fraud, or if upon hearing, this relief should be denied, she prayed specific performance of its terms against him. The instrument giving rise to the controversy is here set out, and is followed by the only paper signed by Atkinson. The deed is as follows:--

"N. Sinnott and wife, deed to Wm. Atkinson.

"STATE OF LOUISIANA,

"PARISH OF ORLEANS.

"For and in consideration of the sum of one thousand dollars, to be paid to us within ten days from the date hereof as per agreement entered into with William Atkinson, of Magnolia, Miss., we hereby sell, convey and warrant to the said William Atkinson, his heirs, assigns, all that portion of land lying in the town of Magnolia, county of Pike, state of Mississippi, known as the Sinnott Place, the same being the only and all the land owned by us in said county and state, excepting only that portion of land lying near the track of the Illinois Railroad and the creek known as the Minnehaha creek, upon which our residence is built [the boundaries are to be indicated by iron posts set up at the corners thereof], and now enclosed by a wooden fence. And we hereby sell, convey, and warrant to the said William Atkinson, his heirs or assigns, the above-described reservation of home and lot of ground, upon the payment by him to us or our administrators of the sum of five hundred dollars. Witness our hands this 19th day of August, A. D. 1887.

N. SINNOTT.

ARABELLA D. SINNOTT."

This instrument was properly acknowledged as a deed by the grantors before a notary public in the city of New Orleans on the day of its date. On the same day Atkinson, by his agent delivered to Mrs....