Blum v. Planters' Bank & Trust Co.

• Decision Date: 15 June 1931
• Docket Number: 29031
• Citation: 135 So. 353,161 Miss. 226
• Parties: BLUM v. PLANTERS' BANK & TRUST CO
• Court: Mississippi Supreme Court

135 So. 353

161 Miss. 226

BLUM v. PLANTERS' BANK & TRUST CO

No. 29031

Supreme Court of Mississippi

June 15, 1931

Division A

1 EVIDENCE.

True consideration of deed may be shown by parol evidence, where it does not change effect of deed, does not affect covenant of grantor or grantee, and neither enlarges nor limits grant.

2. EVIDENCE.

Where deed recited consideration of ten dollars and other considerations good and valuable, parol evidence that true consideration was expressed in written contract held admissible.

3 MORTGAGES.

Where one agrees to make security in future, it is construed in equity as equitable mortgage.

4 MORTGAGES.

Where grantee by contract promised to execute mortgage, but died before doing so, agreement would be treated in equity as equivalent to creation of mortgage.

5. EXECUTORS AND ADMINISTRATORS.

Where grantee was required by agreement to negotiate loan to be secured by mortgage and pay money derived to grantor, but died before doing so, equity would create and preserve lien to secure amount of intended loan to be enforced as specific lien.

6. EXECUTORS AND ADMINISTRATORS. Lien of creditors of decedent under statute held charge only on rights, title, and interest of deceased in land at date of death (Code 1930, section 1643). Code 1930, section 1643, provides in substance that land of testator or intestate shall stand chargeable for debts, funeral expenses and expenses of settling estate over and above what personal estate may be sufficient to pay, and may be subjected thereto in manner provided by other statutes, and that this lien is superior to rights of heirs therein, or any one claiming under or through them.

7. EXECUTORS AND ADMINISTRATORS.

Lien of creditors on lands of decedent is not superior to rights acquired by third parties in such land before death of decedent (Code 1930, section 1643).

8. EXECUTORS AND ADMINISTRATORS.

Bank becoming creditor before lands were conveyed to decedent acquired no right to subject land to payment of debts superior to outstanding liens thereon or equities therein recorded or unrecorded, existing at grantee's death (Code 1930, section 1643).

HON. J. L. WILLIAMS, Chancellor.

APPEAL from chancery court of Washington county, HON. J. L. WILLIAMS, Chancellor.

Petition by the Planters' Bank & Trust Company for the sale of lands to pay the debts of the estate of Lawrence Blum, wherein Jennie S. Blum was made a party, and filed a cross-bill. From the decree, Jennie S. Blum appeals. Reversed and remanded.

Reversed and remanded.

S. B. Thomas, of Greenville, for appellant.

Appellant is entitled to show by testimony that the nominal consideration mentioned in the deed from herself and others to Lawrence Blum was not in fact the true consideration for the conveyance.

Matthews v. Delta, etc., R. R. Co., 90 Miss. 429; Pollen v. James, 45 Miss. 120; Meyer v. Casey, 57 Miss. 657; Coch v. Blackbourn, 57 Miss. 689; Chlever v. Barnheim, 68 Miss. 75; Fowlkes v. Lea, 84 Miss. 509; Raleigh State Bank v. Williams, 117 So. 365; Phillips et al. v. Sipsey Coal Mining Co., 118 So. 513.

The vendor's lien is superior to the creditors of the estate even though the contract was not recorded.

Blum v. Planters Bank & Trust Co., 154 Miss. 800, 122 So. 784.

Where the grantor is without beneficial interest though clothed with a naked legal title, or where the outstanding equity of a third person is such as arises by operation of law, and is incapable of being made a matter of record--as, for instance, where it is a resulting trust, or a vendor's lien--the registry laws have no application.

Mississippi Valley Co. v. Chicago, St. L. N. & O. R. R. Co., 58 Miss. 846; Sack v. Gilmer Dry Goods Co., 115 So. 339.

The failure to record a written contemporaneous agreement entered into between the parties to the deed, showing the true consideration for the conveyance, does not affect the validity of the lien created thereby.

Barkwell v. Swan, 69 Miss. 907.

W. A. Parsons, of Summit, and J. H. Price, of Magnolia, for appellant.

The formal clause inserted generally in deeds of conveyance reciting the consideration and admitting receipt of the purchase money, is always open to explanation and for all purposes except to defeat the operation of the instrument or contradiction. Such a recital does not destroy or waive the vendor's lien.

2 Warbelle on Vendors, p. 705; Scott v. Obison, 21 Ark. 202; Gordon v. Manning, 44 Miss. 756; Holmes v. Patterson, 29 Ark. 357.

Accordingly it is held by an uncounted multitude of authorities that the true consideration of deeds of conveyance may always be inquired into and shown by parol evidence.

17 Cyc. 653.

The vendor of lands who has taken no security, although he has made absolute conveyance by deed and with formal acknowledgment in the deed or on the back thereof, that the consideration has been paid, retains an equitable lien for the purchase price, unless there has been an express or implied waiver or discharge of it, and this lien will be enforced in equity against all persons, except creditors holding under bona-fide mortgages or deed of trust and bona-fide purchasers for a valuable consideration without notice.

3 Equity & Jurisdiction 14, para. 1630; Walton. v. Hargrave, 42 Miss. 27; Lissa v. Posey, 64 Miss. 352.

Vendor's lien arising by implication of law out of relation of vendor and purchaser is not required by our recording laws to be recorded.

Perry Nugent & Co. v. Priebatsch, 61 Miss. 402; Lissa v. Posey, 64 Miss. 352.

Section 1721, Hemingway's Code of 1917, could not be construed to give the right to make chargeable with the debt of the decedent any interest in property except what belonged to the decedent. The language of the section limits it to that. If one man should make to another a deed of conveyance of land for a full and valuable consideration paid in cash and the grantor should die before the deed of conveyance was filed for record, the deed would be not void as against his general creditors.

Whenever in a deed the consideration, or an admission of its receipt is stated merely as a fact, that part of the deed is viewed as a receipt would be and the statement is subject to be varied, modified and explained, but if the stated consideration is in the nature of a contract that is, if by it a right is vested, created or extinguished the terms of the contract thereby evidenced may not be varied by parol proof, but the writing is its own sole exponent.

Culley v. Grubb, J. J. Marsh, 387; 2 Devlin on Deeds, 830.

It is a well established rule that the true consideration of a deed of conveyance may always be inquired into and shown by parol evidence, for the obvious reason that a change in, or contradiction of the expressed consideration does not affect in any manner the covenant of the grantor or grantee, and neither enlarges nor limits the grant.

22 C. J. 1557.

When a party agrees to make a security in future that is construed in equity as an equitable mortgage.

Hardee v. Cheatham, 52 Miss. 41; 11 Am. & Eng. Enc., Law; 22 L.Ed. 125; Burnett v. Boyd, 60 Miss. 627.

Percy, Strauss & Kellner, of Greenville, for appellee.

Where the effect of parol evidence contradicting the consideration expressed in the instrument or showing the true consideration to be different therefrom would be to change or defeat the legal operation and effect of instrument, or to add new matter to an agreement complete upon its face, the evidence is not admissible for in such case it comes within the rule which forbids the introduction of parol evidence to vary, contradict, or defeat a written instrument and not within the exception to that rule that parol evidence is admissible for the purpose of contradicting or showing that the true consideration is other and different from that expressed in the writing.

17 Cyc., p. 659.

The contract not having been recorded, it was void as to all creditors under section 2446 of the Code of 1927.

Mississippi Valley Company v. Chicago, etc., R. R. Co., 58 Miss. 846.

It seems plain that the act makes the conveyance void as to a deed or lien secured between the execution of the deed and the date it is filed for record. Under this section as to such persons the deed or mortgage or other lien has no legal existence until it is filed for record.

Craig v. Osborn, 134 Miss. 323; Reddock v. Williams, 129 Miss. 706; Nugent v. Priebatsch, 61 Miss. 402; Hart v. Gardner, 81 Miss. 650.

The statute fixes the claims of creditors as a lien on the land and this statute creates a statutory lien and a legal charge fixed by statute.

Savings, Building & Loan Association v. Tartt, 81 Miss. 276.

The statute makes the land liable for the debts.

Allen v. Poolle, 54 Miss. 323; Hargrove v. Baskin, 50 Miss. 194.

Under our laws, the real estate of a deceased person, is in the last resort, as much and as truly assets in the hands of his personal representatives for the payment of debts as his personal property is. His debts are a lien on his real estate, his heirs to whom it descends take it cum onere.

In many jurisdiction lands in the hands of bona-fide purchasers from the heirs may be subjected to the debts of the intestate.

18 Corpus Juris, 953.

The purchaser of the interest of an heir pending administration acquires only what is left on distribution, after the settlement of the estate, including the charges and expenses of administration. He takes the land subject to the lien of the decedent's debts.

9 Ruling Case Law 123.

The law is well settled in this state that parol evidence cannot be introduced to vary the terms of a written contract.

Cocke v. Blackbourne, 58 Miss. 537.

A consideration recited to have been paid or contracted for may be varied...