Dunn v. Dent

• Decision Date: 26 March 1934
• Docket Number: 31140
• Citation: 169 Miss. 574,153 So. 798
• Court: Mississippi Supreme Court
• Parties: DUNN v. DENT et al

153 So. 798

169 Miss. 574

DUNN v. DENT et al

No. 31140

Supreme Court of Mississippi

March 26, 1934

Division A

Suggestion Of Error Overruled April 23, 1934.

APPEAL from chancery court of Harrison county, HON. D. M. RUSSELL Chancellor.

Suit by J. W. Dunn against J. R. Dent and others. From a decree of dismissal, complainant appeals. Affirmed.

Affirmed.

J. F. Galloway and J. L. Taylor, both of Gulfport, for appellant.

In an action for the price of land sold, the purchaser may set up in defense the fact that the vendor defrauded him by false representations as to the quantity, quality, condition, boundaries, or other matter injuriously affecting the subject matter of the contract; and no offer to rescind the contract is necessary to entitle him to defend to the extent that he has suffered by the fraud.

Myers v. Estell, 47 Miss. 4, 54 Miss. 174; Lundy v. Hazlett, 112 So. 591, 147 Miss. 808.

It is immaterial whether actual fraud be imputed to appellant. The result is the same, if the transaction was the result of a mutual mistake.

Allen v. Luckett, 94 Miss. 868, 48 So. 186; Oswald v. McGehee, 28 Miss. 340; Rimer v. Dugan, 39 Miss. 477; Davis v. Hurd, 44 Miss. 50; Lizana v. Edwards Motor Sales Co., 141 So. 295; Corley et al. v. Reed et al., 145 So. 341.

In modern times the courts have given away to a more sensible rule that the ancient rule; that the more sensible rule is to give effect to the intention of the parties, if practicable, when no principle of law is thereby violated; and that the intention of the parties is to be ascertained by taking into consideration all of the provisions of the deed, as well as the situation of the parties to it.

Carrere v. Johnson, 115 So. 196, 149 Miss. 105,

It is nothing more than good sense to say that the more accurate parts of a deed shall control, the indefinite or inaccurate parts thereof.

But it so happens here that the only definite and accurate part of the deed is the plat of Pitcher's Point which is complete in itself and was actually located on the ground by appellees through their agent, Mr. Stratton.

Ford, White & Morse, of Pascagoula, for appellees.

Where there is sufficient certainty in the conveyance, and afterwards an additional description which fails in point of accuracy, the latter should be rejected as surplusage.

Ladner v. Cuevas, 138 Miss. 502, 103 So. 217; Carrere v. Johnson et al., 149 Miss. 105, 115 So. 196.

The statute of limitation applies in this case to the appellant, for the reason that the deed executed to him was dated September 16, 1925, and in the absence of any action on the part of the appellees to lull the appellant into a sense of security, or to keep him from making a survey of the land, and the record in this case shows no such action on their part, the statute of limitation applies, and began to run when the deed was delivered to the appellant.

Argued orally by J. L. Taylor, for appellant.

OPINION

Cook, J.

This suit, which was originally filed in the circuit court of Harrison county, is an action of deceit for alleged false representations by the grantors in a warranty deed as to the amount of land conveyed. By an order of the circuit court the cause was transferred to the chancery court, and the pleadings were there reformed to conform to the practice of the chancery court. Upon the final hearing of the cause, a decree was entered dismissing the bill of complaint, and from this decree the complainant appeals.

The proof shows that on September 16, 1925, the appellees executed and delivered to the appellant a warranty deed purporting to convey to him a tract of land having a frontage of five hundred fifty feet on the Gulf of Mexico, at a basic price of one hundred fifty dollars per front foot. Afterwards, by separate suits filed by the appellant herein against the owners of adjoining...