Atkinson v. Whitney

• Decision Date: 02 June 1890
• Citation: 67 Miss. 655,7 So. 644
• Court: Mississippi Supreme Court
• Parties: C. ATKINSON v. M. A. WHITNEY ET AL

7 So. 644

67 Miss. 655

C. ATKINSON v. M. A. WHITNEY ET AL

Supreme Court of Mississippi

June 2, 1890

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

Prior to December, 1886, the appellees, Mrs. M. A. Whitney and her husband M. M. Whitney, had become indebted in a large sum to appellant, Atkinson, a merchant at Summit, Miss., and this debt, alleged by appellant to be about $ 2000, was unsecured. Mrs. Whitney was at that time the owner of the place in controversy, containing about 680 acres, and this was unencumbered. In this condition of affairs, appellant being desirous of securing the debt, requested appellees to execute a trust-deed upon the land in controversy. Objection was made by Mrs. Whitney to the execution of the trust-deed, because she feared their inability to pay the debt, and wished to avoid the sacrifice of the land incident to a forced sale. To meet this objection Atkinson agreed that if they would execute the trust-deed he would provide against a forced sale in case of default, by purchasing the land at a price to be fixed by appraisers. Thereupon Mrs. Whitney with her husband executed the trust-deed upon her land, and at the same time Atkinson signed and gave them an agreement, without date, as follows: --

"This agreement entered into between M. M. Whitney and M. A Whitney, of the first part, and C. Atkinson, of the second part, witnesseth; whereas, the parties of the first part are indebted to the party of the second part in the sum of $ 2021.28, evidenced by their promissory note, dated December 23, 1886, which note they have secured by giving and executing a trust-deed on a certain tract of land, fully described in said deed of trust as follows [here follows a description], containing 680 acres, more or less, and whereas the said parties of the first part are desirous of liquidating the above-described note of $ 2021.28, by selling the above-described lands, and applying the proceeds to the payment of said note, now if the said parties of the first part do not succeed on or before the 1st day of November 1887, in selling the aforesaid lands, then the parties of the first part and the party of the second part shall each select one appraiser who shall go upon the lands before-described and shall ascertain the value thereof, and in case the two aforesaid appraisers do not agree as to the value, then that said appraisers are to select a third man, and the amount agreed upon by any two of the aforesaid three appraisers shall be considered the true valuation, and the parties of the first part shall in consideration of the amount of the valuation so arrived at, make to the party of the second part a warranty deed to the aforesaid described lands, which amount shall be applied to the payment of the aforesaid note of $ 2021.28, and the excess if any shall be paid to the parties of the first part.

C. ATKINSON."

The Whitneys were unable to pay the debt secured or to dispose of the land as provided for in the agreement, and, default having been made, both Atkinson and the Whitneys proceeded to act upon the agreement by selecting each an appraiser who together viewed the land but failed to agree, and no further steps were taken by them. Two other appraisers were then selected in the same manner, and having failed to agree called in an umpire. After examining the land, they appraised it at $ 5.50 per acre, one of the appraisers refusing to concur. The return signed by them erroneously referred to the land as that of M. M. Whitney, but it was well known that it belonged to Mrs. Whitney, and that the husband owned no land.

Pursuant to the agreement and appraisement, the appellees tendered to Atkinson a deed to the land and demanded payment of the valuation in excess of the secured debt, but the latter refused to accept the deed or pay the sum demanded, and directed the substituted trustee to advertise the land for sale under the trust-deed. The Whitneys thereupon filed this bill to enjoin the trustee from making the sale, and, after stating the above facts, prayed for specific performance of the agreement, tendered a deed to Atkinson and demanded a personal decree for the difference between the debt and the appraised value of the land.

The contention on the part of Atkinson is that the agreement was voluntary and without consideration, and void because not signed by Whitney and his wife. It is also insisted that the appraisement is void, because [1] the appraisers were not appointed in writing; [2] no notice was given by the appraisers of the time they would view the land; [3]no witnesses were examined as to value; [4] the return was uncertain, and for that reason void, since the appraisers failed to survey the land and ascertain its exact quantity, and the value was fixed at a certain sum "per acre ;" and [5] the written return of the appraisers referred to the land as that of M. M. Whitney, the husband, whereas the land belonged to Mrs. Whitney.

The decree was in accordance with the prayer of the bill, and the defendant, Atkinson, appeals.

Affirmed.

W. P. Cassedy and Calhoon & Green, for appellant.

The instrument is without date, and on its face shows that it was intended to be signed by Whitney and his wife as well as Atkinson. It contains mutual stipulations which cannot be invoked as against them, yet they seek to hold Atkinson. It purports to be an agreement "between M. M. Whitney and M. A. Whitney, of the first part, and C. Atkinson, of the second part."

Even if executed contemporaneously with the trust deed, it cannot be enforced, as Atkinson intended it to be signed by the Whitneys as appears from the context, and it is nowhere shown that he knew that they had not signed it. It does violence to the statute of frauds to hold it binding without the signature of the parties to be bound. Otherwise it would bind one party and not the other. So if the award suited the Whitneys, they would enforce it; otherwise not. It is necessary to show the assent of both parties to an instrument containing mutual stipulations or mutual covenants. Lee v. Dozier, 40 Miss. 477; Johnson v. Brooks, 31 Ib. 17. The submission to arbitrators was therefore wholly in parol, and having reference to land was void. McMullen v. Mayo, 8 S. & M. 298.

It is fundamental that if one of the parties was not bound, the other was not. 1 Pars. on Contr., § 1292; 14 Am. Dec. 76; 30 Ib. 626.

The statute of frauds cannot be avoided by submitting to arbitration. The instrument is fatally variant from the deed of trust, and in no way explanatory of it. In its very nature they could not be contemporaneous, and the evidence as to the time of their execution being contradictory, the conflicting provisions will be held as conclusive that they were not part of one contract.

Viewing the pretended agreement as a subsequent one, it will be without consideration, and a court of chancery will not enforce specific performance of a voluntary contract. Vassar v. Vassar, 23 Miss. 379; Jones on Mort., § 246.

But viewing the agreement as valid, the award is void. It shows the land valued by the arbitrators was the land of M. M. Whitney, not M. A. Whitney. It values the land at "$ 5.50 per acre," whereas all the deeds show that it contains 680 acres "more or less." The award is thus uncertain. If anything is left undecided so that the dispute is not at rest, an award is not perfect or final. 2 Pars. on Contr., 200; Handy v. Andrews, 52 Miss. 630; Rhodes v. Hardy, 53 Ib. 587; Kyd on Awards, 91, 129. Gibson v. Powell, 5 S. & M. 727; Williams v. Williams, 11 Ib. 399.

The arbitrators should have been sworn. Hill v. Hill, 11 Ib. 616; Jenkins v. Meagher, 46 Miss. 93. Again, the husband had no power to submit the interest of his wife to arbitration. Fort v. Battle, 13 S. & M. 137; Handy v. Cobb, 44 Miss. 699; and this would seem to finally dispose of the case.

S. E. Packwood, for appellees.

The agreement was not strictly a submission to arbitration, but viewed as such was valid. It was not necessary that the arbitrators be sworn, unless specially so provided. Davy's Ex'rs v. Faw, 7 Cranch, 172; 1 Am. & Eng. Encycl. Law, 655, 674; Caldwell on Arbitration, 16, 173.

The use of the words "more or less" in the agreement, and the award at $ 5.50 per acre, does not make the award uncertain. "More or less" simply means that the buyer takes the risk as to the quantity. McCoun v. Delany, 6 Am. Dec. 635.

There is nothing in the agreement or the arbitration that violates our statute of frauds. Atkinson is the party sought to be bound, and he signed it. Sugden on Vend., 99; Marqueze v. Caldwell, 48 Miss. 30.

The reference in the return of the appraisers to the land as that of M. M. Whitney was a mere clerical mistake, which a chancery court will correct.

The agreement was not without consideration. It and the trustdeed were contemporaneous, and stand as complements to each other. If A. promises B. to pay a sum of money if he will do a particular act, and B. does the act, A. is liable, although B. did not at the time of the promise engage to do the act. The performance clothes the contract with sufficient consideration, which relates back, and the promise becomes obligatory. 1 Am. Rep. 258; 3 Am. & Eng. Encycl. Law, 831.

Nugent & Mc Willie, on the same side,

Filed a brief mainly discussing the evidence, and making the following points: --

The execution and delivery of the trust-deed was an ample consideration for the agreement, and the two instruments constitute really one transaction. The appellees signed the trust-deed, and the appellant the agreement. Although the appellees did not sign the agreement they have recognized it and acted upon it throughout, and now rely upon it. Their execution and tender of the deed to appell...