Fowlkes v. Lea

• Decision Date: 23 May 1904
• Citation: 84 Miss. 509,36 So. 1036
• Court: Mississippi Supreme Court
• Parties: JOSEPH A. FOWLKES v. FRANCIS E. LEA

36 So. 1036

84 Miss. 509

JOSEPH A. FOWLKES v. FRANCIS E. LEA

Supreme Court of Mississippi

May 23, 1904

FROM the chancery court of Monroe county. HON. HENRY L. MULDROW Chancellor.

Fowlkes appellant, was complainant, and Lea, appellee, defendant in the court below. From a decree in defendant's favor the complainant appealed to the supreme court.

On the 12th day of December, 1896, appellant, Joseph A. Fowlkes executed the following deed to his son, Lee A. Fowlkes conveying about one hundred and forty-eight acres of land described in the deed--to wit: "This indenture made on the 12th day of December, 1896, by and between J. A. Fowlkes, of Monroe county, state of Mississippi, party of the first part, and Lee A. Fowlkes, of the county of Monroe, state of Mississippi, party of the second part: Witnesseth, that said party of the first part, in consideration of the sum of four hundred dollars to paid by the said party of the second part, the receipt of which is hereby acknowledged, does by these presents grant, bargain, and sell and confirm unto the said party of the second part and his heirs and assigns, the following described lots, tracts, or parcels of land, being and situate in the county of Monroe and state of Mississippi--to wit: [Here describing the land.]" Lee A. Fowlkes married, and afterwards died, and his widow married appellee, Francis E. Lea, and died, leaving him her sole heir. On November 1, 1901, appellant Joseph A. Fowlkes, filed the bill in this case to enforce a vendor's lien on the lands described in the deed to Lee A. Fowlkes, alleging that there was still due four hundred dollars and interest from the date the sale was made. The bill further alleged that "while said deed is ambiguous as to whether the said purchase money was paid or not, in its recitals, complainant avers no part thereof has been, in fact, paid." The defendant, Lea, answered the bill, denying that the purchase money had not been paid, and stated that it had been paid in full. He set up the three-years statute of limitations in bar of the claim. On these pleadings considerable testimony was taken on the issue as to whether the purchase money had been paid. The court below, in its final decree, found that the land had been conveyed by appellant to Lee A. Fowlkes for four hundred dollars, and that no part of the purchase money had been paid, but held that the vendor's lien was barred by the three-years statute of limitations, and dismissed the bill.

Reversed and remanded.

Gilleylen & Leftwich, for appellant.

The recital of payment in the deed does not destroy the vendor's lien, but the recital is prima facie evidence of payment which the vendor must explain or disprove in enforcing the lien. Gordon v. Manning, 44 Miss. 757; Kelly v. Karsmer, 2 So. 164; Devlin on Deeds, sec. 1251.

The explanation of the recital in the deed has been furnished by the vendor. The recital of payment in the face of the deed is a mere receipt, and, like all receipts, evidence can be introduced to contradict it. Devlin on Deeds, sec. 1251. The recital of consideration may always be varied by parol. Meyer v. Casey, 57 Miss. 615; Pollen v. James, 45 Miss. 129; Cocke v. Blackbourn, 57 Miss. 689; Hiller v. Jones, 66 Miss. 636; Miles v. Miles, 78 Miss. 904.

As between the vendor and purchaser or his heir or grantees with notice when there is no independent security taken by the vendor the onus is on the purchaser to prove a waiver of the vendor's lien. Crompton v. Prince, 3 So. 519; Owen v. Boukhead, 76 Ala. 143.

A contract unilateral is made bilateral by the non-signing party's acceptance under it. Marqueze v. Caldwell, 48 Miss. 23; Peevey v. Haughton, 72 Miss. 918.

If the argument made is good, no matter how full and accurate the recital is on the face of the deed, the vendee could never be made to pay unless he signed a collateral undertaking. The vendee rarely signs anything. He accepts the deed and the land. By this acceptance he binds himself effectually to perform all the conditions of the deed, either express or implied, which are provable by a writing. Washington v. Soria, 73 Miss. 665; Cock v. Abernathy, 77 Miss. 872.

The learned chancellor seemed to think that § 2739, Code 1892, applied instead of sec. 2737 as decided in Washington v. Soria, supra. The court took too narrow a view. He seemed to think also that this case was distinguished from Washington v. Soria by the fact in that case that there was a reservation of a lien to secure the deferred payments which were named in the face of the deed. As we have already shown, the express reservation of a lien is not necessary, the law does that. The only other question is, Must the fact that the consideration of four hundred dollars was unpaid have been recited expressly in the face of the deed to set in motion the six-year statute? The contract of the sale of the land in all its essential features is written. By accepting the deed, putting it of record, and entering into possession of the land, Lee A. Fowlkes became a party to the contract, rendered it mutual, and is bound by all its expressed and implied terms.

The argument adopted by the lower court here is tantamount to that overruled in Roberts v. Griswold, 35 Vt. 496, in the language quoted in Peevey v. Haughton, 72 Miss. 925:

"But it is claimed, again, that the consideration should appear in writing, in order to give validity to the guaranty. This must either mean that the acceptance of the defendant's proposition must be in writing or a correlative undertaking on the part of the plaintiff to render future services must be in writing. We can readily understand that this might be required in some cases, as when the guaranty itself did not embody substantially the material and effective terms of the contract, and where resort to parol evidence should be necessary to show what the contract was in its terms and effect; but we do not understand that this has ever been required where all there is to be done by the other party is merely to accept the proposition in the terms in which it is made, and to perform the consideration, either by paying or doing the thing proposed."

George C. Paine, for appellee.

The court will observe from all the testimony in the case that there is not a scintilla of evidence to the effect that there was a note or any other written memoranda of any promise by the appellee to pay for the land. The question, then, is, Was the promise barred when the bill was filed? and, if so, then the decree of the chancellor is correct, and the case ought to be affirmed. The deed was made December 12th, 1896. The bill was not filed until November 1st, 1901. Under the law as announced in Trotter v. Erwin, 27 Miss. 772; Littlejohn v. Gordon, 32 Miss. 235; Avent v. McCorkle, 45 Miss. 221; Proctor v. Hart, 72 Miss. 290, the vendor's lien is barred.

The cases of Washington v. Soria, 73 Miss. 665, and Cock v. Abernathy, 77 Miss. 872, relied upon by counsel in the lower court are not antagonistic to the right of the appellee in the contention that the three-years statute defeats any right the appellant may have. In Washington v. Soria, supra, there were three notes evidencing the deferred payments as well as a recital in the deed reserving a lien upon the land. In the case of Cock v. Abernathy, supra, there were the writings of the power of attorney and the receipt, both of which evidence the fact that the land was sold on credit and had not been paid for. In the case at bar there is absolutely no writing of any kind. The only evidence that the land had not been paid for is the unsatisfactory testimony of the witnesses for the appellant, stating that Lee Fowlkes had said he had not paid for the land.

The only way a vendor's lien could possibly have arisen in this case under the testimony for the appellant is by and through the oral promise or declaration of Lee Fowlkes; it was created by or arose on account of the contract of sale. The vendor's lien is but an incident of the debt. What, then, was the debt in the case at bar, and the evidence of its existence? The only answer is, The debt was the four hundred dollars purchase money, and the evidence of its existence is the oral promise by Lee Fowlkes to pay it. This lien being created by the law can and must coexist with the debt and cannot survive it. Trotter v. Erwin, 27 Miss. 772.

Here the debt being based alone on the oral promise of Lee A. Fowlkes the lien, which is but an incident of the debt, is barred when the debt is barred.

WHITFIELD, C. J. TRULY, J., dissents.

OPINION

WHITFIELD, C. J.

It seems immaterial whether the word "be" or the word "him" be the proper word to be supplied in the blank space of this deed. The deed, at all events, contains an acknowledgment of the receipt of the four hundred dollars and, whether "be" or "him" be supplied, it would still contain such acknowledgment of payment. But this acknowledgment of payment is, in effect, merely a receipt, and may be contradicted by parol. It was contradicted by parol in this case. The chancellor found as a fact, and we concur in that finding, that nothing had been paid, and the deed may therefore be read as if the recital were as follows on this point: "Witnesseth, that the said party of the first part, in consideration of the sum of four hundred dollars, does by these presents grant, bargain and sell, convey," etc., "unto the said party of the second part," etc. Now, this recital plainly states that the land had been sold to the grantee for the consideration of four hundred dollars. The question for solution in this case is, Is this recital a sufficient statement of the terms of the grant to make applicable the statute of limitations relating to written promises? The grantee accepted this deed, went into...