Figg v. Cupit, 52509
| Citation | 401 So.2d 722 |
| Decision Date | 22 July 1981 |
| Docket Number | No. 52509,52509 |
| Parties | E. L. FIGG v. Bert CUPIT, Jr., Barbara Cupit Wettach and Sandra Cupit Bailey. |
| Court | Mississippi Supreme Court |
Bill Waller, Waller & Waller, Jackson, for appellant.
Jerry T. Johnston, Johnston, Adams & Younger, Brandon, for appellee.
Before SMITH, LEE and BOWLING, JJ.
Bert Cupit, Jr. and his two daughters filed suit in the Chancery Court of Jefferson County on October 13, 1977, seeking specific performance of a ten-year royalty deed between themselves and appellant E. L. Figg. The chancellor ordered performance of the remaining period of the ten-year term and Figg appeals.
Cupit and his daughters agreed to sell Figg a one-half royalty interest in twenty-seven acres of land in the Union Church Community of Jefferson County. The agreed price for conveyance of the ten-year royalty was $9,112.50.
After the deed was signed by Cupit and his daughters, Figg delivered to Cupit a draft drawn on the First National Bank of Jackson in the amount of $9,112.50. On the face of the draft appeared the following words, "UPON APPROVAL OF TITLE BUT NO LONGER THAN 10 DAYS AFTER ARRIVAL AT COLLECTING BANK." Figg testified that the deal was premised upon the condition that he have ten days to check and approve the title.
On November 16, 1976 the check was deposited in Cupit's bank in Brookhaven. The royalty deed was attached to the draft. It was never established when the draft arrived at the collecting bank, but it was stated that it generally takes two days for a draft to arrive at the collecting bank after its deposit.
On November 17 Figg employed a Port Gibson attorney, Allen Burrell, to check the title. It is not disputed that the attorney is a reputable and competent attorney. Burrell made an examination of the land records on November 18 and found four items, which he considered questionable, concerning the title. One concern was that when Cupit's predecessor in title, his father Bert Cupit Sr., took title to the property there was a reservation outstanding of one-half of the minerals. Another item was that the deed by which Cupit Jr. received the property passed title to him and his wife Imogene as joint tenants and Imogene had not signed the royalty deed. The final two items which the lawyer questioned related to the survey description and the acreage content.
The day after his title examination, the Port Gibson attorney called Figg, related the problems with the title, and told Figg that he could not approve the title unless the problems were cleared up.
Relying upon the lawyer's findings, Figg informed Cupit that the deal was off and instructed First National Bank not to pay the draft. This occurred within the ten day period stipulated on the face of the draft.
As it turned out, it subsequently developed that the attorney had overlooked a deed granting Cupit's predecessor in title the outstanding mineral interest in 1952. Also, Mrs. Imogene Cupit, the joint tenant owner of the property, had died prior to the execution of the royalty deed thus extinguishing her interest in the property.
The chancellor ordered Figg to pay 7/10 of the $9,112.50, an amount which equaled the balance outstanding on the ten-year term specified in the deed.
Figg argues on appeal that the words on the draft "UPON APPROVAL OF TITLE BUT NO LONGER THAN 10 DAYS AFTER ARRIVAL AT COLLECTING BANK" created a purchaser satisfaction contract which required that the title not be merely merchantable, but one satisfactory to the purchaser.
The death of the joint tenant was a matter in pais, not reflected by the land records. While it appears now to be conceded that she was, in fact, deceased, and that there were answers to other questions raised by the lawyer, the question was not whether the grantors who executed the deed had a merchantable title, but whether the title was in such condition, in his lawyer's opinion, as to meet that individual's unqualified approval within the brief time limited.
When the excitement of the prospect of oil production enters a county and of quick riches "beyond the dreams of avarice," time becomes of the essence and litigation the order of the day. It is not unreasonable that a knowledgeable purchaser should desire to buy only mineral royalties with nothing left to...
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Martin v. Winfield
...entitled subject only to any defenses which may be available in law to enforce it against Martin according to its tenor. Cf. Figg v. Cupit, 401 So.2d 722 (Miss.1981) (restriction in instrument pertains only to title). Miss.Code Ann. Sec. 75-3-306(b) (Supp.1983) provides that Martin has "all......
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Johnson v. Brewer
...is not a party to the present action.2 Though not controlling or pertinent upon the pleadings in the instant case, see Figg v. Cupit, 401 So.2d 722 (Miss.1981), where we dealt with the effect of a contract supported by consideration represented by a bank draft.3 It should be noted that in W......
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Horton v. Ronny Taylor & Encana Oil & Gas (Usa) Inc.
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