Dew v. Langford

• Decision Date: 30 November 1995
• Docket Number: No. 92-CA-00810-SCT,92-CA-00810-SCT
• Citation: 666 So.2d 739
• Parties: Dan H. DEW, Jr. v. Albert LANGFORD.
• Court: Mississippi Supreme Court

Page 739

666 So.2d 739

Dan H. DEW, Jr. v. Albert LANGFORD.

No. 92-CA-00810-SCT.

Supreme Court of Mississippi.

Nov. 30, 1995.

Michael G. Piazza, Jackson, for Appellant.

H.D. Brock, Whittington Brock Swayze & Dale, Greenwood, for Appellee.

Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

STATEMENT OF THE CASE

Dan H. Dew, Jr., brought an action against Albert Langford claiming title to real property held by Langford. On May 20, 1992, a trial was held and Chancellor Edward G. Cortright, Jr., of the Yazoo County Chancery Court declared that Dew failed to establish that Langford held in trust for Dew title to the real property, and that Dew was not entitled to any other relief. On June 22, 1992, Dew filed a Motion to Reconsider or Alternatively for a New Hearing, which was denied by the lower court by Order dated July, 30, 1992. Dew filed his Notice of Appeal to this Court on August 6, 1992.

STATEMENT OF THE FACTS

Dan Dew purchased, in the name of a corporation, Eden Farms, Inc., a 1,135-acre tract of mainly hill land located in Yazoo County and Holmes County, Mississippi. The purchase of the land was financed by Travelers Insurance Company through a 15-year loan evidenced by a balloon note and secured by a deed of trust on the land. Travelers refused to refinance the loan when it became due and began foreclosure proceedings. On March 18, 1991, one day before the foreclosure sale on the property, Dew approached his longtime friend, Albert Langford, and proposed that Langford purchase the land at the foreclosure sale for two hundred twenty-one thousand, five hundred one dollars ($221,501.00) and then convey the property to Dew when Dew obtained new financing. Specifically, Dew offered Langford a twenty-five thousand dollars ($25,000.00) fee if he would buy the property at the foreclosure sale and subsequently sell the land to Dew for the amount of the purchase price plus any interest on the amount of the purchase. This oral offer, which later became part of the oral agreement between the two parties, is uncontroverted.

The only part of the agreement in controversy is how long Dew had to perform his part of the agreement. At trial, Langford testified that Dew gave him $25,000 in exchange for Langford's oral agreement to purchase the land and sell it to Dew at the purchase price within 90 days. Dew testified that he told Langford that it would be the end of the year (1991) before Dew could arrange financing to buy the property back and that no absolute deadline for the repurchase was ever mentioned.

On the night of March 18, 1991, Langford called Dale McBride, president of the Durant, Mississippi branch of Merchants and Farmers Bank. McBride testified that during the telephone conversation, Langford indicated that he needed a loan in order to keep his friend from losing some property at a foreclosure sale. Also, McBride testified that during that conversation, Langford stated that he needed the loan for just 90 days, because it would be paid back in less than that time as he was going to let Dew have the money until Dew could arrange financing elsewhere.

On the morning of March 19, 1991, Dew gave Langford $25,000 in cash pursuant to their oral agreement and accompanied Langford to the bank. At the bank, Langford signed a master note for a loan of up to $225,000.00 and assigned to the bank a savings account worth $34,486.96 and two certificates of deposit, each worth $100,000.00. McBride made this note for a term of 105 days, instead of the 90 days requested by Langford, so that the note would not come due at the end of a month. Later that same day, Langford purchased the property at the foreclosure sale without the benefit of a title Langford testified that during each conversation that he and Dew had from March through June, Langford would ask Dew if he was getting the permanent financing set up and inquire about Dew paying the delinquent taxes. After Dew failed to obtain any financing during the first 105-day loan which was due on July 5, 1991, Dew asked Langford for additional time to obtain a loan because he had not had time to do so at that point. Upon hearing about Dew's farming problems, Langford agreed to give Due an extension, and he and Dew went to the bank in Durant on July 12, 1991, whereupon Langford renewed his note for 60 days until September 5, 1991. Dew paid all of the interest which had accrued from March 19 through July 12. During the second loan period, Langford reminded Dew on occasions when they were together that Dew had to go ahead and get the permanent financing approved. When the second note became due on September 5, Dew told Langford that Dew's wife had cancer, he had not had time to get permanent financing, and that he needed yet another extension. Langford agreed to give Dew a second extension. In September, Dew paid the interest that had accrued since July on the second note, and Langford renewed or extended the note for three more months until December 10, 1991. Langford testified that he made many calls to Dew over the period from March through December and that most of the calls related to Dew getting the taxes paid and obtaining permanent financing, although some of the calls did relate to farming operations and obtaining fish to cook.

check or opinion. Dew failed to inform Langford at the time of the purchase or any time that the 1989 and 1990 ad valorem taxes on the property had not been paid. Dew also admitted that he contributed none of the $221,501 that Langford used to purchase the property at the foreclosure sale.

As the due date for the third note drew near, Langford tried unsuccessfully to contact Dew by telephone. Langford called Dew's wife on December 5, 1991, and Dew's daughter-in-law on December 3, 1991, and left messages with both of them to deliver to Dew that he wanted to close the deal at the end of this note period. Langford also testified that he told Dew's wife on December 5, 1991, that he did not want to renew the note any further. When Langford again called Dew's residence on December 6 and reached Dew's wife, Dew's wife told Langford that she had delivered the message to her husband and did not know why he had not contacted Langford.

Langford paid off the note on its due date, December 10, 1991, in the amount of $225,585.30, which included interest since September. That same day, Langford put locks on gates located upon the property in an effort to keep hunters out of the property since he was going to try to market the property as a hunting place. Also that day, Langford put "posted" signs and "for sale" signs on the property and placed advertisements in several newspapers requesting $350 per acre for the land. At this time, Dew had finished harvesting crops that he had planted on a small portion of the land. Later that night, Dew called Langford inquiring about why "Dew's place" was for sale. Langford responded by telling Dew that Langford had paid off the note that day and had paid $10,000 to redeem a substantial portion of the delinquent taxes on the land. The total taxes that were paid by Langford amounted to $10,303.20. Langford further explained that Dew could have bought the land for Langford's purchase price plus accrued interest before Langford paid the note, but now the price was higher because of additional costs and expenses that Langford had incurred. Dew offered to pay Langford for all the taxes that Langford had redeemed, all expenses, and $10,000 more for an extra 10 days to obtain financing. Langford refused Dew's offer and, in turn, offered to sell the property to Dew, but not at the original purchase price because of the additional investments which Langford had made into the property. Dew testified that Langford offered the property to him for $375 per acre if Dew tendered the money before anyone else did. Langford, however, testified that he never told Dew what price it would take to buy the land back.

At trial, Dew admitted that from March through December he made no application to Dew, through his complaint filed in the Chancery Court of Yazoo County, Mississippi on December 31, 1991, sought an order (a) declaring that Langford held title to the subject property as constructive trustee for Dew and ordering the sale of such property to Dew at the agreed upon price; or (b) alternatively, an order for the sale of the property and a distribution of the proceeds between Dew and Langford in proportion to the amounts invested in the property and the compensation previously received by Langford; and (c) awarding Dew a reasonable amount for improvements to the subject property while legal title was held by Langford.

any lending institution to obtain financing, but only tried one time to get a broker to look at the property. During that same time, Dew never tendered to Langford the money required to reimburse Langford for the purchase price of the land. However, Dew testified that at no time from June through December 6, 1991, did Langford request the purchase price of the property. Langford, on the other hand, testified that upon each renewal of the note, he made an oral demand upon Dew to pay the purchase price so that Langford could cancel his notes.

Langford timely filed his answer to Dew's complaint alleging certain affirmative defenses, including § 15-3-1 of the Mississippi Code Annotated of 1972, commonly known as the statute of frauds, and also alleging that Dew was attempting to enforce an oral contract which Dew had breached. Langford in his counterclaim also sought damages which the trial court denied.

On the date of the trial, Dew sought a continuance, which the court denied based on the fact that the trial date had been set by an order agreed to by both parties and that Dew stated insufficient grounds for a continuance.

Following the trial, the court entered an opinion dated June 4, 1992, finding that: (a) "the establishment of a constructive trust is an equitable...