Fuqua v. Joudon, 31539

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtGriffith, J.
Citation172 Miss. 11,158 So. 795
PartiesFUQUA v. JOUDON et al
Docket Number31539
Decision Date28 January 1935

158 So. 795

172 Miss. 11

JOUDON et al

No. 31539

Supreme Court of Mississippi

January 28, 1935

Division B


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.


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.


[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....

To continue reading

Request your trial
6 cases
  • Union National Life Ins. Co. v. Crosby, 2002-IA-01751-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • 12 Febrero 2004
    ...consideration wholly fails, the payor may recover the money back in an action of assumpsit for money had and received." Fuqua v. Joudon, 172 Miss. 11, 158 So. 795 (1935) (citing Milam v. Paxton, 160 Miss. 562, 570, 134 So. 171 (1931).) The action of assumpsit is based in equity. Fuqua, 158 ......
  • Fidelity Mut. Life Ins. Co. v. Goldstein, 33921
    • United States
    • United States State Supreme Court of Mississippi
    • 2 Enero 1940
    ...922, the printed form actually appears in the record at Page 18 of the original record, and in the case of King v. Jones, 171 Miss. 886, 158 So. 795, the printed form appears at Page 29 of the record. D. S. Strauss, of Greenville, for appellees. This contest is predicated upon the failure o......
  • Abraham v. Harvey, 42418
    • United States
    • United States State Supreme Court of Mississippi
    • 17 Diciembre 1962
    ...as thus found by the chancellor, we are of the opinion that the complainant was entitled to relief.' Page 643 See also Fuqua v. Joudon, 172 Miss. 11, 158 So. 795; Welch v. Lawson, 32 Miss. The office of a demurrer is to test the bill of complaint on the ground that defendant ought not to be......
  • Robert G. Bruce Co. v. Spears, 33200
    • United States
    • United States State Supreme Court of Mississippi
    • 23 Mayo 1938
    ...his land must answer to us for this timber denied. Federal Land Bank of New Orleans v. Miles, 169 Miss. 43, 152 So. 472; Fuquay v. Jordan, 172 Miss. 11, 158 So. 795; Lewis v. Ladner, 168 So. 281. We cannot see any reason whatever why the action of the Chancellor in allowing this $ 375 which......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT