Fultz v. Peterson

• Decision Date: 29 October 1900
• Court: Mississippi Supreme Court
• Parties: JACOBUS D. FULTZ ET AL. v. SOPHIA PETERSON ET AL

28 So. 829

78 Miss. 128

JACOBUS D. FULTZ ET AL. v. SOPHIA PETERSON ET AL

Supreme Court of Mississippi

October 29, 1900

October 1900

FROM the chancery court of Warren county HON. WILLIAM C. MARTIN Chancellor.

Sophia Peterson and others, appellees, were the complainants in the court below; Fultz and Purnell, appellants, were defendants there.

The controversy grew out of this state of facts: A Mrs. Thompson and another formerly owned the land in controversy, it being situate on an island in the Mississippi river, known as Belk's island. They leased the same for a term of years to one A. Peterson, the ancestor of complainants. Peterson the tenant, being in possession of the land, about the time of the expiration of his lease, desired to own the same and negotiated a purchase thereof from Mrs. Thompson and her co-owner. He agreed to pay them $ 1, 200, but, having only $ 200 with which to make payment, he applied to Guthrie &amp McMillan, a partnership, for a loan of $ 1, 000, with which to pay the balance of the purchase money, and they loaned him that sum under an agreement that the title should be taken in their names as security for the loaned money. Peterson then consummated the purchase, paying his vendors the $ 1, 200, of which he had borrowed, as aforesaid, $ 1, 000, and took the deed, as he had agreed to do, in the name of Guthrie &amp McMillan. He was the real purchaser, and was at the time in the possession of the land, and he remained in possession a number of years thereafter, during which time he made various payments to Guthrie & McMillan on the loan, and they rendered him written statements showing that the payments received were on account of Belk's island land purchase, etc. The island was overflowed some years after Peterson's purchase, and he temporarily left it, but, soon after the water subsided, he placed a tenant on the land. Guthrie & McMillan caused this tenant to pay them rent, and sold the land to appellants, who had notice of all the facts. The appellees took possession. Complainant's ancestor, Peterson, having died intestate, they inherited his rights and began this suit, seeking to have the absolute deed executed by Mrs. Thompson and her co-owner to Guthrie & McMillan declared to be a mortgage, defendants adjudged trustees of the legal title for complainants' benefit, and for an accounting of payments and rents, so as to redeem from the mortgage, etc.

The court below decreed in complainants' favor and referred the matter of the accounting to a master, who reported that the loaned money debt to Guthrie & McMillan, for which the deed from Mrs. Thompson and another was a mortgage, had been fully paid and that defendants were indebted to complainants on account of rents. The master's report was confirmed, over exceptions of both parties, and the defendants were ordered to execute deed to complainants and pay them the sum due as found by the master. The defendants appealed to the supreme court.

Affirmed.

A. M. Lee, for appellant.

1. Section 4230, of the code of 1892, precludes relief in the case made by the bill. Complainants set out just such an express parol trust and confidence in the land in controversy as is declared by the statute to be utterly void.

2. If the case be considered as one to convert a deed absolute in form into an equitable mortgage, the evidence in the case falls short of the measure of proof required for that purpose. It is everywhere admitted that the testimony in such cases must be clear and convincing. 6 Am. & Eng. Enc. L., 679, and note; Jones v. Brittain, 1 Woods (U.S.), 667.

3. Appellants were entitled to the protection of innocent purchasers for value. They had a right to rely on the possession of their grantors and the record title.

Dabney & McCabe, for appellees.

The court did not err in holding that the deed mentioned and described in the bill of complaint was designed and intended by all the parties thereto as a security for a loan, and that appellees had the right to a conveyance, the debt being paid. The case made by the facts here is expressly exempted from the provisions of § 4230, code 1892, and that section has no application to the case...