Cannon v. Holberg Mercantile Co.

• Decision Date: 23 November 1914
• Citation: 66 So. 400,108 Miss. 102
• Court: Mississippi Supreme Court
• Parties: CANNON v. HOLBERG MERCANTILE CO. ET AL

66 So. 400

108 Miss. 102

CANNON v. HOLBERG MERCANTILE CO. ET AL

Supreme Court of Mississippi

November 23, 1914

October 1914

APPEAL from the chancery court of Winston county. HON. J. F. MCCOOL Chancellor.

Suit by P. J. Cannon against the Holburg Mercantile Company, and others. From a judgment dismissing the bill, plaintiff appeals.

In May 1907, Mrs. E. F. Kennedy, through her agent and attorney, Z A. Brantley, verbally agreed to sell W. H. Hathorn a certain lot in the town of Louisville, Mississippi, for the sum of one hundred and fifty dollars. As soon as this agreement was made, and before the sale was consummated, Hathorn purchased a house from the Merchants' & Farmers' Bank for the sum of one hundred and fifty dollars, and had it moved onto this lot. He also borrowed one hundred and fifty dollars from the bank, a part, if not all, of which was used by him to cover the expense of moving the house on the lot. He did not pay the bank for this house in cash, but gave it his note for the sum of three hundred dollars, the amount due it both for the house and for the money borrowed. Afterwards J. L. Cannon agreed with Hathorn to take the house and lot, paying therefor the sum of four hundred and fifty dollars; that is he would pay the bank three hundred dollars due it by Hathorn, pay Mrs. Kennedy one hundred and fifty dollars, and receive from her a deed to the property. On November 4, 1907, Hathorn and Cannon called upon Mr. Brantley, Mrs. Kennedy's agent and attorney, for the purpose of consummating the purchase of the lot, told him of their agreement, and requested him to obtain from Mrs. Kennedy a deed to Cannon to the land, the consideration therein expressed to be four hundred and fifty dollars. Brantley advised them that the best thing to do was for him to obtain a deed from Mrs. Kennedy to Hathorn reciting the consideration as one hundred and fifty dollars, and that Hathorn could then execute a deed to Cannon. He told them that his reason for advising this course was that Mrs. Kennedy was not in Louisville, but was in Columbus, Mississippi, and that the matter would have to be arranged with her by correspondence; that she understood that he was selling the land for one hundred and fifty dollars, and that, if he should recite in the deed a consideration of four hundred and fifty dollars, she would not understand it, and might think that he was selling the property for a greater amount than he had reported to her. This was agreed to by Hathorn and Cannon. Brantley then drew up two deeds, each bearing date November 4, 1907, one from Mrs. Kennedy to Hathorn, reciting the consideration therein to be one hundred and fifty dollars, and one from Hathorn to Cannon reciting a consideration therein to be four hundred and fifty dollars. He then forwarded the deed for Mrs. Kennedy's signature to her at Columbus, and she signed and acknowledged it on the 16th of November, 1907, and returned it to Brantley. When it was received by him he immediately notified Hathorn and Cannon, who came to his office on November 30th for the purpose of consummating the agreement entered into by them. What then occurred can best be told in Brantley's own language, he having testified as a witness in the cause:

"On November 30, 1907, the said W. H. Hathorn and J. L. Cannon called at my office and completed the agreement had on November 4, 1907, by the said W. H. Hathorn executing to J. L. Cannon a deed to the said lot of land for and at the consideration of four hundred and fifty dollars, which included the purchase price to Mrs. Kennedy, one hundred and fifty dollars, and the note in favor of the Merchants' & Farmers' Bank of three hundred dollars. When the said J. L. Cannon executed his check in favor of myself (Z. A. Brantley) for four hundred and fifty dollars, and that upon the receipt of said check of four hundred and fifty dollars I delivered the two deeds to J. L. Cannon, and went with him to the chancery clerk's office, and had the chancery clerk to record the deed from Mrs. Kennedy to W. H. Hathorn first and the deed from W. H. Hathorn to J. L. Cannon second. I then went to the Merchants' & Farmers' Bank, and paid them three hundred dollars out of said check, and took up the note of W. H. Hathorn, and remitted the balance, one hundred and fifty dollars, to Mrs. E. F. Kennedy at Crawford, Mississippi. I will state further that W. H. Hathorn did not receive any part of said amount of four hundred and fifty dollars; that it was all handled by me and paid out just as stated. J. L. Cannon paid me a fee of ten dollars for drafting the deeds to said lot. At the time of this transaction I knew nothing of the Holburg Mercantile Company having a judgment against W. H. Hathorn; and, in fact, had I known this fact, I would have had these parties to have carried out the transfers just the same, as Hathorn was not receiving any part of the purchase money paid by the said J. L. Cannon, and that the said J. L. Cannon was only carrying out, with reference to said lot, the verbal agreement which I had had with the said W. H. Hathorn in May, 1907."

On the 16th day of January, 1908, Cannon executed and delivered a deed to the property to appellant, who is his wife. On the 8th day of April, 1907, appellee Holburg Mercantile Company obtained a judgment against Hathorn in a court of a justice of the peace, which was enrolled in the office of the clerk of the circuit court of Winston county on the 29th day of May following. In December, 1909, execution was issued on this judgment, and placed in the hands of the sheriff, who was proceeding thereunder to sell this lot, when appellant filed her bill in the court below praying that the sale be enjoined. This bill, to which the judgment creditor and the sheriff were defendants, was, on final hearing, dismissed.

Reversed.

Z. A. Brantley and H. H. Rodgers for appellant.

We especially call the court's attention to the fact that no deed was ever delivered to W. H. Hathorn, and no legal interest whatever accrued to him by his verbal contract with Mrs. Kennedy for said land. On page 5, of W. H. Hathorn's evidence in which he says that he never handled the deed or received same, that the deeds were sent to Z. A. Brantley and he delivered both deeds to J. L. Cannon. Now as a matter of fact, Cannon paid the purchase money for said land, and Hathorn had at no time any interest in said land subject to execution.

The real test is whether W. H. Hathorn had any interest in said land, that could have been subjected to the lien of said judgment. Our contention is that he had no interest in said land; the very day the deeds were delivered to J. L. Cannon, he then and there paid Mrs. Kennedy the sum of one hundred and fifty dollars, and the Merchants' and Farmers' Bank the purchase price of said house, and cost of moving same. Hathorn had no interest in said land neither legal nor equitable. Simmons v. North, 3 S. & M. 67; Money v. Dorsey, 7 S. & M. 15; Hay v. Talleferro, 8 S. & M. 727.

Now under section 2156, Code of 1906, the purchase money lien is a prior lien and even it extinguishes the homestead right, and there can be no homestead exemptions as long as the purchase money is due and unpaid, and in the case at bar, the appellant paid the purchase money for said land, and thereby appellant's title and legal rights are superior to appellee's. The appellant's right is founded upon the payment of the purchase money for said land and possession thereof.

Appellant's equities in said land...