Dixon v. Milling

• Decision Date: 21 October 1912
• Docket Number: 14,848
• Citation: 102 Miss. 449,59 So. 804
• Court: Mississippi Supreme Court
• Parties: S. I. DIXON v. NORA MILLING ET AL

59 So. 804

102 Miss. 449

S. I. DIXON v. NORA MILLING ET AL

No. 14,848

Supreme Court of Mississippi

October 21, 1912

APPEAL from the chancery court of Neshoba county, HON. JAMES F MCCOOL, Chancellor.

Suit by Mrs. Nora Milling and others against S. I. Dixon. From a decree for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and dismissed.

Byrd &amp Wilson, for appellant.

Appellees by their bill, and the entire proceedings shown by this record, undertake to completely destroy and blot out a good and valid deed on its face, by parol testimony, a proposition as we believe, unknown to the law. It is elementary that you can introduce parol testimony to aid in the construction of a deed where there is a latent ambiguity or to explain what the true consideration was. It is not to be found in the books anywhere where a court will entertain parol testimony to completely destroy a deed, as is sought to be done in this case, except upon the ground of fraud. Fraud is not as much as even hinted at in this record. This is a complete warranty deed on its face. Appellees seek by their bill to engraft on this deed a condition that is not even hinted at in the deed. The consideration in the deed is one dollar and the appellees say that the further consideration was S. I. Dixon's promise to support and maintain their mother. We submit that all the authorities hold that this, that is the one dollar and the promise, is a sufficient consideration to support the deed and S. I. Dixon's failure, if he did fail, to carry out this promise can in no way affect the validity of this deed and appellees' remedy, if they have any, is for the purchase price. It is elementary that they cannot destroy this deed in the manner they are undertaking to do. In support of this doctrine we respectfully invite the court's attention to the following authorities:

"As has been shown, the courts allow the greatest latitude of inquiry as to what consideration really passes between the parties, and the grantor is not estopped by his acknowledgment of payment in any action which he may bring for the recovery of the purchase money or other object, so long as the validity of the deed as an operative conveyance is not attacked. But the rule which we have been considering is subject to the important qualification that parol evidence cannot be admitted for the purpose of destroying the effect and operation of the deed. From this rule it follows that the grantor cannot claim that a trust results to himself when he has executed a deed without consideration. This would be defeating the deed by parol evidence, which cannot be done. Creditors, of course, can show that the deed was made without consideration for the purpose of defeating it." 2 Devlin on Deeds (2 Ed.), sec. 834.

"The recital in the deed that a pecuniary consideration has been paid, so far as the legal effect of the conveyance as a deed of bargain and sale is concerned, is conclusive. By this is meant simply the effect of the deed aside from any question of fraud." 2 Devlin on Deeds (2 Ed.), sec. 810.

"If an owner of land execute a deed on the consideration that the grantee shall pay all the debts of the grantor, the grantee, although he does not execute the deed, yet if he accepts the deed and takes possession of the land is bound personally for the payment of the debts of the grantor, and a court of equity will subject the land to the payment of such debts. Though a part of the consideration fail, there will be no apportionment where a part of it is good." Same Devlin, sec. 811.

The court will bear in mind that these are absolute deeds on their face and appellees undertake to engraft a contemporaneous parol condition on that. This we most earnestly contend cannot be done. Listen what the great lawgiver Delvin says in section 976 of his most excellent work:

"Parol Condition. Aside from the question of reformation of a deed in cases where causes have been omitted by mistake, it certain that in an action to recover property conveyed by deed on the ground that a condition on which it was made has not been performed, the deed must speak for itself, and a condition cannot be engrafted upon a deed absolute in form by parol evidence. The engrafting of a contemporaneous condition on a deed will, in a proper action, be allowed only on clear evidence of fraud, accident or mistake."

Section 975 a of the same book we read: "The grantor cannot rescind a deed, in consideration of support for his life, by executing a subsequent conveyance without the consent of the grantee, for the reason that the support has been withheld. He must resort to his action for the value of the support withheld, or rescind on equitable grounds."

It seems to us that the foregoing quotations from Devlin on Deeds are decisive of the question at issue in this case. We have made a very exhaustive research of the authorities and we can find nothing to the contrary. On examination of the cases cited by counsel for appellees it will be found that none of them are in point. They deal with executory contracts and have no bearing whatever on the vital question at issue in this case. We cite the further authorities in support of our contention as follows: 4 Ency. of Evidence, 194, "A very general and well-recognized limitation upon parol evidence in this class of cases is that its introduction must not result in defeating the conveyance." See...