Carter v. Hurst, 45749
| Decision Date | 20 April 1970 |
| Docket Number | No. 45749,45749 |
| Citation | 234 So.2d 616 |
| Parties | James W. CARTER v. Charles HURST et al. |
| Court | Mississippi Supreme Court |
John P. Fox, Houston, Watkins & Eager, William E. Suddath, Jr., Jackson, for appellant.
Jemes S. Gore, Houston, Tubb & Stevens, West Point, for appellees.
James W. Carter, complainant-appellant, brought this action against Charles Hurst and E. E. Noland, defendants-appellees, in the Chancery Court of the First Judicial District of Chickasaw County, for specific performance of a contract for the sale of land, which was signed by only one of two co-executors. The other had not authorized it, but later joined in signing a deed to the land which was transmitted to their own attorney. Before delivery, they instructed him not to deliver the deed. Affirming the trial court, we hold that the co-executor did not thereby ratify the sale contract, and that specific performance was correctly denied.
Modess Bridger of Houston, Mississippi, died testate on January 29, 1963, owning a seventy-acre tract of land which is the subject of this litigation. The will specifically disinherited her heirs-at-law and devised all of her estate to the Assemblies of God, Inc., with the directive that one-third of the proceeds of the estate be allocated 'for the radio ministry of Rev. Charles Hurst.' The will then appointed Charles Hurst and E. E. Noland, Mississippi Secretary of the Assemblies of God, as the executors without bond, and empowered and directed them to sell all the testatrix's properties, both real and personal, at public or private sale, without precedent court authorization. Hurst and Noland presented the will for probate and were appointed and qualified as executors.
On January 7, 1964, Hurst executed a contract for sale of the subject lands with James Carter:
On this date the undersigned Rev. Charles Hurst has agreed to sell on behalf of the Assemblies of God, Incorporated, and the undersigned James W. Carter has agreed to buy for the purchase price of Three Thousand Eight Hundred Dollars ($3,800.00) the following described real property. * * *
Armis E. Hawkins, attorney-at-law, Houston, Mississippi will prepare the necessary deed and send it to the Seller for proper execution, and in said deed the undersigned James W. Carter and his wife Opal I. Carter will be named as Grantees, and upon receipt by Armis E. Hawkins of the sum of Three Thousand Eight Hundred Dollars ($3,800.00) cash or cashier's check payable to the undersigned Rev. Charles Hurst and Rev. E. E. Noland * * * he is authorized to deliver the deed to the purchaser.
Noland was not a party to this transaction, did not authorize it, and knew nothing of it at the time.
Pursuant to the contract of sale, attorney Hawkins prepared a deed and by letter of January 8, 1964, transmitted it to Hurst for execution by Hurst and Noland.
Enclosed is the warranty deed unto Mr. and Mrs. James Carter, as was agreed upon in my office yesterday. I believe this instrument expresses the understanding and agreement which you and Mr. Carter had in reference to the sale of this property.
When you and Rev. Noland have executed this deed, if you will mail it to me, I will secure from Mr. Carter the sum of $3,800.00, either in cash or by a cashier's check payable to you and Rev. Noland. Upon receipt of this check, or cash, as the case may be, I will deliver the deed.
The deed was signed by Hurst and Noland and returned to Hawkins sometime before January 21, 1964.
Meanwhile, Carter had employed H. B. Abernathy, an attorney, to check the title to the land, and Abernathy had recommended that, for the purchaser's security, the Bridger will should be probated in solemn form, as distinguished from the common-form proceeding then in progress. Abernathy also had raised questions concerning a precedent reservation of minerals. Hawkins apprised Hurst of these developments in a letter dated January 14, 1964, and the next day, Hurst, his ardor for the transaction considerably dampened, wrote Carter:
I received word today from Mr. Hawkins that you have called Mr. Abernathy into the picture, which of course is your right to do so. However, from what Mr. Hawkins tells me the entrance into the picture of Mr. Abernathy has greatly complicated things.
I signed the agreement, and the deed in good faith to let you folks have the land, but now it appears that since Mr. Abernathy is laying down some additional provisions that will become more complex and involve more expense I don't know whether we will be able to go thru with it. I have always tried to keep my word, but since more expense will be involved I must say that it appears now that we will not be able to let you have the land.
Brother Carter, I have already built a name for being honest, and I hope you will understand my position.
I will say this, if you had not called Mr. Abernathy into the case you no doubt would already have the deed to the property. We must meet God, please don't feel hard at me for having to back down on this sale.
On January 17, 1964, Hurst wrote Hawkins that the Carter deal was at an end. He ascribed as a reason the title requirements of Abernathy.
Following receipt of Hurst's letter, Carter engaged the services of J. May, a real estate agent, and had May contact Hurst in an effort to preserve the deal. May, on Carter's behalf, offered to finance solemn-form probate and also to increase by $200 the consideration for the sale. On January 21, 1964, Hurst responded to May's overtures:
I talked to Mr. May on the phone, and he has possibly already told you about our conversation * * *
I am deeply disturbed that this thing has got into such a mess. The State Secretary in Meridian came to see me last Friday, and he said I should never have made an agreement with you without talking to him. However, he did sign the deed an Mr. Hawkins has it, an it would have been delivered to you if you had not gone to Mr. Abernathy.
Mr. May told me that you would be willing to pay $4,000 for the land, an also you would pay the extra expense of having to go thru the 'Solemn Form' of settlement as Mr. Abernathy requests * * * Please write an tell me if you will be willing to pay this extra expense of...
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