Dixon v. Wright
| Decision Date | 09 March 1936 |
| Docket Number | 32091 |
| Citation | 166 So. 374,175 Miss. 191 |
| Court | Mississippi Supreme Court |
| Parties | DIXON v. WRIGHT |
Suggestion Of Error Overruled, April 6, 1936.
APPEAL from Chancery Court of Hinds county HON. V.. J. STRICKER Chancellor.
Suit by Hiram M. Wright against John W. Dixon. From an adverse decree, defendant appeals. Decree reversed, and cause remanded.
Reversed and remanded.
John E. Stone and D. C. Enochs, both of Jackson, for appellant.
The deed is absolute on its face, and the contract permitting a repurchase is optional with, and not compulsory upon, Wright.
27 Cyc. 1003; Magee v. Catching, 33 Miss. 672; Wallace v. Johnstone, 129 U.S. 58; Chandler v. Chandler, 76 Iowa 574.
On the face of the two instruments it is manifest they do not constitute a mortgage in the case at bar, as they clearly show no obligation on the part of Wright to pay any indebtedness to Dixon, and an indebtedness, says Chief Justice GEORGE, in the Magee v. Catching case, is of the essence of a mortgage.
Collins v. Vandever, 1 Iowa 573; Johnson v. Staley, 32 Ind.App. 628; Hoopes v. Bailey, 28 Miss. 328.
The complainant Wright having parted with the possession of the property conveyed by the deed, parol evidence could not be considered by the court in decreeing the deed a mortgage.
Section 3351, Code of 1930; Culp v. Wooten, 79 Miss. 503, 31 So. 1; Jordan v. Jordan, 145 Miss. 779, 111 So. 102.
If parol evidence could be considered by the court, the same was insufficient to prove the deed a mortgage.
When it is sought to destroy the sanctity of an instrument, such as a deed, by parol proof, and change its form from the absolute to the conditional, the proof necessary to alter or change the written instrument must be clear, unequivocal and convincing.
Jordan v. Jordan, 145 Miss. 779, 111 So. 102; 45 C. J. 345; Wallace v. Johnstone, 129 U.S. 58; 2 Bobbs-Merrill Miss. Dig., page 166, par. 400.
It is manifest Wright could not have exercised the option in the eighteen months, and was not prevented from doing so by any alleged statement Dixon made. If the alleged statement of Dixon was before the papers were executed, as Wright says, it was merged in the writing. And if the alleged statement of Dixon was after the execution of the papers, it was nudum pactum, without a consideration.
66 C. J. 502, 503; Liddell v. Sims, 9 S. & M. 596, 609; Hoopes v. Bailey, 28 Miss. 328; Railroad Co. v. Land, etc. , Co., 82 Miss. 188.
And on the "reasonable price" feature of the option to repurchase, that is no different from a fixed price, which it is in legal effect, and may be enforced, says the courts, without difficulty.
Wallace v. Johnstone, 129 U.S. 58; Hoopes v. Bailey, 28 Miss. 328; R. T. Clark & Co. v. Miller, State Revenue Agent, 154 Miss. 233, 122 So. 475.
Horton & Sanders, of Jackson, for appellant.
Counsel for appellee contends that there was only one objection in the entire record, and that counsel for appellant himself interrogated the witnesses about the same matter, and therefore the appellant cannot object to the evidence in this court.
We respectfully submit that appellant did not lose his right to object, in this court, to the evidence, by virtue of the fact that he did not object over and over again, and repeat his insistence upon it.
Section 580, Griffith on Equity Chancery Practice; Edrington v. Stephens, 114 So. 387; Kendrick v. Robertson, 111 So. 99.
We respectfully submit that counsel for appellees is wrong in his contention that this matter is a rule of evidence. It is plain from the law that it is a rule of substantive law.
Section 3351, Code of 1930; Jordan v. Jordan, 111 So. 102.
L. F. Easterling and J. E. Skinner, both of Jackson, for appellee.
If it be admitted that the facts were in dispute between the parties, a decision of the court below on the facts will not be reversed where the court had the witnesses before him, and the opportunity of a trier of fact to judge and weigh the evidence.
First Miss. Digest, page 150; Mutual Life Ins. Co. v. Herron, 79 Miss. 381, 30 So. 691; Davis v. Richardson, 45 Miss. 499, 7 Am. Rep. 732; Apple v. Ganong, 47 Miss. 189; Harrington v. Allen, 48 Miss. 492; Wilson v. Beauchamp, 50 Miss. 24; Suttle v. Mechanics' Aid., etc., Assn., 29 So. 758; Vaughan v. Commercial Bank, 18 So. 270; Coffee v. Coffee, 24 So. 262.
There being no objection to the evidence in the court below, none can be raised here.
Burroughs Land Co. v. Murphy, 95 So. 515, 131 Miss. 526; Williams v. Butts, 87 So. 145, 124 Miss. 661; Weaver v. Turner, 87 So. 641, 125 Miss. 250; Mitchell v. Finley, 137 So. 30; De Laval Separator Co. v. Cults, 107 So. 522, 142 Miss. 379; Morris v. Robinson Bros., 110 So. 683, 144 Miss. 861; Woodmen of the World v. Sloom, 101 So. 195, 136 Miss. 549.
The declarations and statements of the parties made pending the negotiations and at the time of the final execution of the deed and contract are admissible, and the rule that the terms and conditions of a written contract cannot be varied does not apply to such evidence. The law is well settled that a deed absolute on its face may be shown by parol to have been executed for the payment of money, when it will be treated in equity as a mortgage.
Miller v. Thomas, 14 Ill. 430; Keithly v. Wood, 151 Ill. 566, 42 A. S. R. 265; Helberg v. Schuman, 150 Ill. 12, 42 A. S. R. 339.
It has been said that the fact that no consideration whatever moved to the grantor except money advanced to be expended upon the land tends very strongly to show that there was no sale.
Rubo v. Bennett, 85 Ill.App. 473; Freeman v. Wilson, 51 Miss. 329.
In construing an absolute deed as a mortgage the following tests are of almost exclusive weight: 1. Was the treaty in reference to a borrowing and lending of money, and was the obligation to repay incurred? 2. Did the relation of creditor and debtor exist before the conveyance and did that relation continue? 3. Was there great disparity in the price of the property?
Klein v. McNamara, 54 Miss. 90; Freeman v. Wilson, 51 Miss. 329; Thomas v. Holmes County, 67 Miss. 754; Fultz v. Peterson, 78 Miss. 128, 28 So. 829; Culp v. Wooten, 79 Miss. 503, 31 So. 1; Lee v. Wilkinson, 105 Miss 358, 62 So. 275; McGehee v. Weeks, 112 Miss 483, 73 So. 287.
The general rule everywhere seems to be that where a warranty deed is made and at the same time a contract of reconveyance that the decree of proof required is not as strong as where there was a deed absolute in terms standing alone. The contract shows that the deed is not what it purports to be. The agreement shows that the deed is not an absolute conveyance. In case of doubt the court will always lean towards the theory that the instrument constitutes a mortgage, as this secures the interest of all parties and works a hardship upon none. Equity has always carefully scrutinized such transactions, and if any doubt exists the courts will hold the transaction to be a mortgage.
Schmidt v. Barkley, 161 Mich. 1, 20 Ann. Cas. 1194; McArthur v. Robinson, 104 Mich. 540, 62 N.W. 713; Reed v. Reed, 75 Me. 264; Rich v. Doane, 35 Vt. 125; Cobb v. Day, 106 Mo. 278, 17 S.W. 323; Wilson v. Patrick, 34 La. 362; Gossum v. Gossum, 15 S.W. 1057; Russell v. Southard, 12 How. 148.
When sued, appellant attempted to stand upon the words of contract, but admits that he never would put any price on it.
Campbell v. Dearborn, 109 Mass. 130, 12 Am. Rep. 671.
Parol evidence is admissible under the statute.
Barkwell v. Swan, 69 Miss. 907; Schwartz v. Lieder, 79 Miss. 257, 30 So. 649; Culp v. Wooten, 79 Miss. 503, 31 So. 1; Fultz v. Peterson, 78 Miss. 128, 28 So. 829; Cosby v. Buccannan, 1 So. 899.
The decree of the court below is right on any theory, and is supported by the pleadings and the evidence.
Dease v. Moody, 31 Miss. 618; Steward v. Gates, 30 Miss. 100; Eckford v. Halburt, 30 Miss. 273; Joslin v. Caughlin, 30 Miss. 502; Burrough v. Jones, 30 So 605; Bonds v. Holcomb, 12 S. & M. 316.
Appellee filed his bill against appellant in the chancery court of Hinds county to cancel a deed executed by him to appellant on the twenty-eighth day of March, 1931, to certain real estate situated in the city of Jackson; to have the deed, in connection with a contemporaneous written agreement, declared to be a mortgage; for an accounting as to the amount due by him under the mortgage; and for an opportunity to pay the same. The cause was heard on original bill, answer, and proofs, resulting in a decree as prayed for. The decree appointed a master for an accounting, and granted an appeal to settle the principles of the cause.
Section 3351, Code of 1930, is in this language. "A conveyance or other writing absolute on its face, where the maker parts with the possession of the property conveyed by it, shall not be proved, at the instance of any of the parties, by parol evident, to be a mortgage only, unless fraud in its procurement be the issue to be tried."
The deed involved, leaving off the caption signature, acknowledgment, and description of the property, reads as follows. ...
To continue reading
Request your trial
-
Nitkey v. Ward
...to the transaction. That is a strong circumstance tending to prove that the conveyance was what it purported to be (see Dixon v. Wright, 175 Miss. 191, 166 So. 374), for the absence of a personal obligation very materially affects the determination as to whether an absolute conveyance was i......
-
Conner v. Conner
...converted the deed into a mortgage, for the reason that there was no proof that a legal obligation to repay existed. In Dixon v. Wright, 175 Miss. 191, 166 So. 374, 375, the Court held that, where a bill of complaint sought to have a deed, which had been executed in connection with a contem......