Burton v. Weathers
| Decision Date | 09 December 1940 |
| Docket Number | 34277. |
| Citation | 199 So. 79 |
| Court | Mississippi Supreme Court |
| Parties | BURTON v. WEATHERS et al. |
Appeal from Chancery Court, Washington County; J. L. Williams Chancellor.
" Not to be reported in State Reports."
Suit by Robert M. Burton, administrator of the estate of A. E O'Brien, Sr., deceased, against G. C. Weathers and others to impress an equitable lien against certain land and to cancel a deed of trust. From a decree dismissing the bill of complaint, the plaintiff appeals.
Affirmed.
B. B Allen, of Indianola, and Harold L. Ratcliff, of Memphis, Tenn., for appellant.
Ben Wilkes and Wynn, Hafter & Lake, all of Greenville, for appellees.
As administrator of the estate of A. E. O'Brien, Sr., deceased, the appellant filed a bill of complaint to impress an equitable lien against certain lands in Washington County, Mississippi, belonging to the appellees, G. C. Weathers and wife, and also to cancel a deed of trust thereon held by the appellee, Mrs. J. H. Hafter, on the ground that the said lands constituted that part of Belmont Plantation which had been conveyed to the said G. C. Weathers and wife by R. J. Lorenz and wife, of Chicago, Illinois, in consideration of the assumption by the grantees of the entire indebtedness evidenced by two outstanding deeds of trust against the whole of the said Belmont Plantation, and the remainder of which plantation was conveyed during the same year by the Lorenzes to the said O'Brien, and to be free of the liens of the said two deeds of trust and who, as such last mentioned grantee, was required to pay substantial sums of money to the holders of the said liens, the payment of which had been assumed by the Weathers as aforesaid.
It appears that in January, 1931, the Lorenzes leased by written contract 664 acres of Belmont Plantation to the Weathers at an agreed rental of $2,250 with an option to purchase the same on or before October 1st of that year by assuming an indebtedness of $18,000, bearing interest at 5 1/2 per annum, held by the Metropolitan Life Insurance Company, and secured by a first lien on the entire plantation, consisting of approximately 1450 acres, and a further indebtedness of $1,600 held by the Southwest Mortgage Company and secured by a second lien on the entire plantation, and to pay the grantors a further sum of $1,750 in installments. This lease contract with option to purchase was duly recorded on the 3rd day of March, 1931.
On March 7th, 1931, one Neely Bowen, of Memphis, Tennessee, a real estate agent representing the Lorenzes, effected a sale from them to A. E. O'Brien for the remaining portion of Belmont Plantation, not covered by the Weathers' option, in consideration of a conveyance by O'Brien to the Lorenzes of certain city property owned by him at Memphis, Tennessee. The deed from the Lorenzes to O'Brien erroneously recited that the Weathers had " assumed the entire indebtedness held by the Metropolitan Life Insurance Company ***; and the second or commission mortgage held by Southwest Mortgage Company", and that the grantee (O'Brien) " does not assume any part of said indebtedness, but the lands herein conveyed are conveyed clear and free from the liens of said two trust deeds", whereas the truth was that the Weathers were not then obligated to purchase any part of the land, but only held the option to do so. The deed to O'Brien further recited that " if for any reason the grantee shall be required to pay any amount to the holders of the said two mortgages to obtain a release from the liens of the same as to the lands herein conveyed, such purchaser will at once either refund to the grantee herein, or his assigns, the amount so paid for such releases or give him security therefor ***" . This conveyance was duly recorded on March 17, 1931.
On November 10, 1931, the Weathers exercised their option to purchase the portion of the plantation which they had rented for that year, and they accordingly obtained a deed of conveyance from the Lorenzes, for the said 664 acres, which recited a consideration of $10 cash and other valuable considerations, the receipt of which was acknowledged, and further that the grantee assume the sum of $15,700 as the then remaining part of the indebtedness due the Metropolitan Life Insurance Company, bearing interest at 5 1/2 % per annum; also the $1,600 due the Southwest Mortgage Company; and the further sum of $2,300 due the grantors secured by a special vendor's lien on the land.
It is the...
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