Fuqua v. Joudon, 31539

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Griffith, J.
• Citation: 172 Miss. 11,158 So. 795
• Parties: FUQUA v. JOUDON et al
• Docket Number: 31539
• Decision Date: 28 January 1935

158 So. 795

172 Miss. 11

FUQUA
v.
JOUDON et al

No. 31539

Supreme Court of Mississippi

January 28, 1935

Division B

1. MONEY RECEIVED.

Generally, where party has paid money to another as consideration for a contract and contract, so made is void and unenforceable so that consideration wholly failed, payor may recover money in action of assumpsit for money had and received.

2. HOMESTEAD.

Purchaser of timber on homestead from husband, under bill, to reform document, not signed by vendor's wife, which purported to but did not convey title to timber, could recover money paid to husband as consideration for document, under alternate prayer for return of money paid where contract was void under homestead exemption laws.

HON. JAS. A. FINLEY, Chancellor.

APPEAL from chancery court of Monroe County HON. JAS. A. FINLEY, Chancellor.

Suit by Isaac Joudon and others against Peyton Fuqua. From a decree in favor of plaintiffs, defendant appeals. Affirmed.

Affirmed.

[172 Miss. 12] M. C. Young, of Aberdeen, for appellant.

No attempt was made to draw a legal document, but the crude paper was self-sufficient. It reads in such a way that the clear intent is that it was intended and meant only as a mere memorandum.

Equitable correction and reformation of writings is an innovation on the statute of frauds and such cases as this one cannot be taken out and grafted on to the law of equitable reformation.

Brimm v. McGee, 119! Miss. 52, 80 So. 379; McCallister v. Richardson, 103 Miss. 418, 60 So. 570; Queen City Hoop Co. v. Barnett, 127 Miss. 66, 89 So. 819; Rogers v. Clayton, 115 So. 106.

To hold the memorandum not a proper subject for reformation will of itself cut the ground out from under the count for a money decree.

Howie v. Swaggard et al., 142 Miss. 409, 107 So. 556; Hairston v. Jaudon, 42 Miss. 380.

It doesn't seem to be disputed that the land the timber is on is the homestead of the appellant. The wife not having signed the timber sale transaction it is absolutely void, and that would be true if the paper sued on was in proper form. And if money paid on such contract could be recovered that would make it have vitality, and enforce the argument that the fact that it was void for either reason that it was not legally sufficient or that it had as its subject-matter the homestead and recovery should be had by virtue of the nullity of the paper sued on.

Ashley v. Young, 123 Miss. 693, 86 So. 458; Blair v. Russell, 120 Miss. 180, 81 So. 785; Pounds v. Clark, 70 Miss. 263, 14 So. 22; McDonald v. Sanford, 88 Miss. 633, 41 So. 369; Queen City Hoop Co. v. Barnett, 127 Miss. 66, 89 So. 819.

Leftwich & Tubb, of Aberdeen, for appellees.

If through fraud, mistake or accident the writing has not been made to speak the agreement of the contracting parties, it will be reformed to truly represent what the parties intended it should; and, when thus reformed, it will be enforced as if originally drawn.

Miles v. Miles, 84 Miss. 624, 37 So. 112; Goodbar & Co. v. Dunn, 61 Miss. 618; Dunbar v. Newman, 46 Miss. 231; Norton v. Coley, 45 Miss. 125; Jones v. Levy, 92 Miss. 551, 46 So. 825; 23 R. C. L., Sec. 27, p. 335; 23 R. [172 Miss. 13] C. L., Sec. 52, p. 354; 65 Am. St. Rep. 481; Annotated Cases 1914D, p. 227; 28 L.R.A. (N.S.), p. 896.

A court of equity will interpose and correct a mistake of fact even though the parties used the very terms they designed to use.

Miles v. Miles, 84 Miss. 624, 37 So. 112; Brumm v. McGee, 119 Miss. 52, 80 So. 379; Birchett v....