Davis v. Holifield

• Decision Date: 16 January 1967
• Docket Number: No. 44209,44209
• Citation: 193 So.2d 723
• Parties: Raymond L. DAVIS v. Morgan HOLIFIELD.
• Court: Mississippi Supreme Court

Page 723

193 So.2d 723

Raymond L. DAVIS v. Morgan HOLIFIELD.

No. 44209.

Supreme Court of Mississippi.

Jan. 16, 1967.

O. F. & J. O. Moss, Lucedale, for appellant.

William T. Bailey, Lucedale, for appellee.

SMITH, Justice.

The litigation, out of which the present appeal arose, was initiated by the filing of a bill of complaint by appellant, Raymond L. Davis, against Morgan Holifield, appellee, in the Chancery Court of George County. The bill sought: (1) reformation of a deed, executed by Holifield conveying certain land to Davis, so as to embrace 70 acres instead of 54.2, (2) an injunction restraining Holifield from foreclosing a trust deed, executed by Davis, securing the balance of the purchase money for the land, (3) a money judgment against Holifield for $47.62, the amount of the ad valorem taxes assessed upon the land for the year 1964, and (4) a decree requiring Holifield to accept, as payment in full of the balance of the purchase money, the sum of $4500 tendered into Court by Davis.

Holifield answered, denied the material allegations of the complaint, and made his answer a cross-bill by which he sought permission to foreclose his purchase money trust deed for the purpose of subjecting the land to the payment of the $4500 purchase money note given by Davis, plus costs, including an attorney's fee as provided in the note.

The deed sought to be reformed by Davis was executed by Holifield on February 24, 1964. It contained the following granting clause: 'I, Morgan Holifield, do by these presents, hereby sell, convey, and warrant unto Raymond L. Davis. * * *'

The pertinent portion of the land description as it appears in the deed is as follows:

'SECTION 24: All land South of a county road known as Old River Road running in a Northwesterly Southeasterly direction of Lot No. 3 of Section 24, Township 3 South, Range 7 West.'

'The land hereinabove conveyed is estimated to contain seventy acres whether it actually comprises more or less.'

Under the provisions of Mississippi Code Annotated section 845 (1956), the words of the granting clause made the conveyance a deed of general warranty, and imported the five common law warranties, i.e., seision, power to sell, freedom from encumbrance, quiet enjoyment, and warranty of title.

The circumstances which led to the execution of the deed follow.

Holifield owned Lot 3, referred to in the description, and decided to sell that portion of it which lay south of the Old River Road. To that end, in January or February 1964, he posted upon the property a sign advertising it for sale.

One Tucker, who was a cousin of appellant Davis, and who was a pilot of a fishing boat operated by Davis, saw the sign and contacted Holifield about purchasing the land. He was shown the land by Holifield and informed that the asking price was $13,000. Tucker decided not to buy the land but brought it to the attention of his cousin, the appellant, Raymond L. Davis. Davis contacted Holifield with reference to purchasing the property. He asked Holifield to sell him the entire lot, that is, not only that part south of Old River Road, but that part north of the road as well. Holifield declined to sell anything north of the road, and made it clear that only that portion of the lot lying south of the road was for sale. There ensued some two or three conferences between Davis and Holifield with reference to the purchase and sale of the land. In the course of these negotiations, Davis succeeded in persuading Holifield to reduce the price from $13,000 to $11,500. At that figure, the deal was closed and the deed executed. Davis paid Holifield $7,000 in cash, and gave him a note for the balance of $4500, secured by a second mortgage upon the property. Davis does not contend that he was mistaken as to the lines and corners of the tract, or that there was any misrepresentation as to its boundaries. He understood that he was buying only the land south of the road which was under fence. Davis testified that prior to purchasing the land he 'walked the fences' but 'not all the way.' He said he went back subsequently and 'walked the land lines' at the corners. He stated repeatedly that he was never told he was to acquire any part of the land lying north of the road. At one point, he testified:

'Q. At any time did you think you were buying anything north of the road, had anybody led you to believe you were buying anything north of the road?

A. No.'

Davis testified further:

'* * * the land I was buying was south of the Old River Road which runs through the property, and Mr. Hurt asked how many acres were being conveyed and Mr. Holifield said 70, I believe right at 70 is the words he said.'

Tucker, who had brought the land to Davis' attention, testified as a witness for Davis:

'* * * he (Holifield) showed us (Tucker and Davis) the lines, the fence lines were the boundaries of what he wanted to sell, it was under fence.'

He also stated that Holifield had not been willing to sell, and expressly refused to sell, any of the land lying north of the road. None of the land lying north of the road was fenced.

The land had some improvements on it, including two houses and a small barn. At least one of the houses was occupied and in use, but in poor condition.

The evidence is without substantial conflict except as to the representation, alleged by Davis to have been made to him by Holifield, that the tract contained approximately 70 acres. Davis asserts the representation was made, Holifield denies that it was made. In any event there is no dispute as to what tract was intended by Holifield to be sold, and by Davis to be purchased. The conflict relates solely to the number of acres enclosed within the agreed boundaries.

Davis testified that Holifield said the property contained approximately 70 acres. Holifield denied this, and stated: 'We talked about that part of the land south of the Old River Road which was under fence.' Holifield was asked, 'Who was it that did this?' And he answered, 'Me and Mr. Davis.'

Holifield was further questioned as follows:

'Q. How many times did you do this?

A. Twice.

Q. Before the sale?

A. Before we sold.'

The substance of Davis' complaint, as set out in his bill, is that he was told by Holifield that the property comprised about 70 acres. Holifield had never had it surveyed.

Davis first became dissatisfied in November 1964, some eight months after he had gone into possession, when he was told by one Robbin that there were only about 55 acres in the tract. Davis then had the property surveyed. His survey showed that there were 54.2 acres south of the road. Davis demanded of Holifield that he convey to him enough land north of the road to make up a total of 70 acres. This Holifield declined to do. Davis then informed Holifield that he would not pay the balance of the $4500 as evidenced by the purchase money note, but would only pay for 54.2 acres, at a per acre price figured on the basis of 70 acres at $11,500. Holifield refused to accept this proposition and returned a check for $2500 tendered to him by David on November 28, 1964, as payment in full of the $4500 note.

Davis admitted that when he first approached Holifield on this subject that Holifield told him that if he was unhappy with the transaction that his money would be refunded upon reconveyance of the land. Davis would not agree to this.

Davis testified in part as follows:

'Q. At that time did he (Holifield) propose to you if you weren't happy he would give your money back didn't he say that?

A. Correct, he said he had a man that would pay him more money than I was paying.

Q. You didn't want to do that?

A. No.

Q. What did you tell him?

A. I told Mr. Holifield if he would give me a deed to the rest of the property I was supposed to buy that I would pay the rest I owed and if he didn't want to sell any of that across the road I would prorate it and I would pay him for what I received, 54.2 acres, and he wasn't agreeable to that then.'

The $4500 purchase money note was due December 1, 1964. In January 1965, Davis having expressly refused to pay the note, Holifield turned it over to his attorney for collection. This attorney addressed a letter to Davis demanding payment, plus twenty percentum as attorney's fee, as provided in the note. Davis had already employed an attorney to bring the present suit. In preparing for the suit, an investigation of the record title was made by the attorney for Davis. As a result of this search, Davis seeks to justify his refusal to pay the $4500 note when due, by asserting that there had been certain breaches of the warranty contained in his deed.

The deed to Davis reserved to the grantor an interest in all oil, gas and other minerals, reciting that it was the intention of the grantor to convey 'an undivided one-half interest' in whatever interest he now owns in such 'oil, gas and other minerals * * * said grantor reserving unto himself one-half of all mineral interest he now owns in the land.'

In the course of the record search made by Davis' attorney preparatory to bringing suit, it was discovered that a 'Producer's 88' oil, gas and mineral lease, dated November 9, 1955, executed by Holifield, had not been cancelled of record. The existence of this document was alleged to be a breach of warranty. The primary term of the lease expired November 9, 1965, but it was not shown that it had been kept in force during the term from year to year by payment of delay rentals or otherwise. In addition, a formal cancellation of this lease...