Evans v. Sharbrough

• Decision Date: 09 March 1914
• Citation: 64 So. 466,106 Miss. 687
• Court: Mississippi Supreme Court
• Parties: MRS. S. F. EVANS v. B. W. SHARBROUGH

64 So. 466

106 Miss. 687

MRS. S. F. EVANS v. B. W. SHARBROUGH

Supreme Court of Mississippi

March 9, 1914

March 1914

APPEAL from the chancery court of Jones county, HON. SAM WHITMAN Chancellor.

Suit by Mrs. S. F. Evans against B. W. Sharbrough. From a decree rendered, both sides appeal.

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

Decree reversed in part; affirmed and remanded.

D. B Cooley and W. J. Pack, for appellant.

We contend that the lower court committed grave error in decreeing that the appellant was liable for rent and taxes on the property during the time that she held possession of same, when the evidence shows that the appellee sold this property to appellant for one thousand dollars, with interest; that she was to have the possession of the property; that Sharborough put her into the possession of same at the time the contract was entered into. The court will bear in mind that appellant was not in possession as a tenant or under any agreement that she should pay rent.

In the case of Ankenny v. Clark, 148 U.S. 345; 37 Law Ed 475, in passing on this same question, the supreme court of the United States, says: "Another assignment of error is as to the refusal of the court to charge the plaintiff and credit the defendant with rent on the land during the time while the plaintiff was in possession. But the plaintiff was not in possession as a tenant, or under any agreement that he should pay rent. Nor does the law under the circumstances of the case raise any obligation to pay rent. Bardsley App., 20 W. N.C. is directly in point: "It may be conceded that if one occupy the land of another by the consent of the latter, without any agreement, that assumpsit for use and occupation lie. Such, however, is not this case. Here the possession was taken and maintained under an express contract by which the appellant, in consideration of eight thousand dollars to be paid therefor, agreed to convey to the vendee a certain house, free and clear of all incumbrances, title to be perfect. At the date of the agreement the vendee paid five hundred dollars and was at all times ready to pay the residue of the purchase money on a deed being delivered to him according to the agreement. The vendor was not able to execute a deed according to his contract. These facts show that the vendee was not in possession under such circumstances as to create the relation of landlord and tenant. There was neither an express nor an implied contract to pay rent, and no action could be maintained for the use and occupation of the premises. The authorities are uniform on this subject and we content ourselves with the reference to a few cases: Patterson v. Stewart, 6 Watts & S. 527; Williams v. Rogers, 2 Dana, 374; Gilliard v. Mayner, 5 Johns, 86; Guthrie v. Pugsley, 12 Johns, 126; Cook v. Doggett, 2 Allen, 439.

In the case of Herndon v. Harrison, 34 Miss. 386, our court held: "As a general rule, the measure of damages which a vendee is entitled to recover for the failure of the vendor to convey a title according to the stipulations of his title bond is the amount of the purchase money and interest."

"And where such fraud or mistake exists in the contract, as entitled the vendee to a rescission, he is also entitled to be reimbursed for the payments that he has made, with interest: 29 Am. & Eng. Ency. of Law (2 Ed.), 728 Harrison v. Stowers, Walker (Miss.), 165; Greenlee v. Gaines, 13 Ala. 198; Goodwin v. Robinson, 30 Ark. 535; Lyman v. Annable, 4 Conn. 350; McDonald v. Beall, 35 Ga. 288; Wheelet v. Mather, 56 Ill. 241; Yeoman v. Lasley, 40 Ohio St. 190."

In Davis v. Heard, 45 Miss. 50, a case similar to the one at bar, our court held: "When the vendee has paid the purchase money upon a contract for the purchase of land, which has been rescinded on account of the default of the vendor, he has an equitable lien on the land for the reimbursement of the money paid upon it similar to that of the vendor for the unpaid purchase money. He is entitled to recover the purchase money paid, with interest."

In our opinion, Mrs. Evans is entitled to recover the amount that she paid Sharborough on the contract, to wit: seven hundred and forty-five dollars and eighty cents, with interest on said amount, free from any claims for rent or taxes on the part of Sharborough, because of the fraud perpetrated on her by Sharborough and his inability to carry out his part of the contract. And we respectfully submit that that part of the decree charging appellant with rent and taxes on the property ought to be reversed.

R. L. Bullard, for appellee.

The direct appeal challenges the correctness of the decree in awarding rents and taxes. We say the decree is incorrect in that it awards a rescission, but if not she agreed to pay the taxes, she was in the possession and enjoyment of the property, and agreed that if she did not complete the payments, what she did pay was to go as rents.

In 39 Cyc. 1427 (E) we have, "Where a purchaser in an executory contract is in possession of the land, he must, as a condition of rescission, tender the rents received by him for the use thereof. It has been held, however, that a purchaser who surrendered possession two years before suing for rescission was not obliged to tender before suit the value of the use of the premises, which could have been counterclaimed against the purchase money...