Goff v. Jacobs

• Decision Date: 30 January 1933
• Docket Number: 30397
• Citation: 164 Miss. 817,145 So. 728
• Court: Mississippi Supreme Court
• Parties: GOFF v. JACOBS

145 So. 728

164 Miss. 817

GOFF v. JACOBS

No. 30397

Supreme Court of Mississippi

January 30, 1933

Division B

1 EVIDENCE.

Prior negotiations could not be considered to determine understanding of parties to written land contract.

2. VENDOR AND PURCHASER.

Vendor was not entitled to specific performance, though purchaser had notice of incumbrance violating land contract.

3 CONTRACTS.

Courts will enforce valid contracts as made, but will not make contracts for parties and then enforce them.

4. CONTRACTS. In construing contracts, courts will not resort to implication for purpose of importing into agreement what, so far as court may definitely know, was not actually agreed on by parties.

This rule is particularly applicable where parties have at much pains and in detail undertaken to reduce their agreement to such specific written terms as to evince their purpose to expressly cover every phase of their understanding.

5. VENDOR AND PURCHASER.

Purchaser's agreement in land contract "to assume all 1930 taxes," even if including 1930 drainage taxes, held not to imply further agreement to assume all drainage taxes for subsequent years (Laws 1914, chapter 269, page 338, section 9).

HON. R E. JACKSON, Chancellor.

APPEAL from chancery court of Bolivar county, HON. R. E. JACKSON, Chancellor.

Suit by Sophia K. Goff against Sam Jacobs. From an adverse decree, plaintiff appeals. Affirmed.

Affirmed.

Somerville & Somerville, of Cleveland, for appellant.

Contemporaneous construction of contract by parties is very persuasive with court.

Spengler v. Stiles-Tull Lbr. Co., 94 Miss. 780, 48 So. 966; Powell v. Russell, 88 Miss. 549, 41 So. 5; Ramsey v. Brown, 77 Miss. 124, 25 So. 151; Candler v. Cromwell, 57 So. 554, 101 Miss. 161.

Agreement in contract to pay "all taxes" included all drainage taxes as well as other taxes.

Code 1930, section 4488; Ch. 195, Laws 1912, secs. 22, 23 and 24; Kramer v. Standing Pine Dr. D., 78 So. 5, 117 Miss. 387; Cox v. Wallace, 56 So. 461; Carrier Lbr. & M. Co. v. Quitman Co., 125 So. 416, 156 Miss. 396, 66 A.L.R. 614.

Purchaser only entitled to such title as a reasonably prudent man would demand--merchantability.

6 Pom. Eq. Jur., p. 1321, sec. 801; 25 R. C. L. 275, sec. 76; Rife v. Lybarger, 31 N.E. 768.

When the purchaser agrees to pay all of the taxes for the year of purchase then it is a matter of common knowledge, judicially known to the court, that this means not only that the purchaser will pay the taxes for that particular year but that he will pay the taxes for all subsequent years.

If this court should hold that a vendee under a general warranty deed could sue the vendor for all drainage assessments it would cause a flood of litigation such as would upset everything in the Delta; we say this not as a threat but as showing the common acceptance of the situation in the Delta and so far as we know all over the state, that when the contract and deed specify that Jacobs is to pay all 1930 taxes it necessarily means that he is to pay all taxes which fall due in subsequent years.

Shands, Elmore & Causey, of Cleveland, for appellee.

The assessment or assessments so levied shall be a lien on all of the real property of the district from the time that the same is levied by the board of supervisors in an amount not to exceed the total amount of estimated benefits on all the real property in the district, and shall be entitled to preferences to all demands, executions, encumbrances or liens whatsoever and shall continue until such assessment, with any penalty and costs that may accrue thereon, shall have been paid.

Section 9, chapter 269, Laws of 1914; Hintan v. Mayo Drainage District, 120 Miss. 523, 535, 82 So. 334.

The statute under which the drainage proceedings were conducted provides that "the amount of the assessments as made or approved and confirmed by the court shall be a lien upon the lands so assessed from the time of the filing of the petition. The covenant of warranty extends to a lien thus given priority by express statutory provision.

Pierse v. Bronnenbrug's Estate, 81 N.E. 739.

The rule that a formal written contract, which appears to be complete, will be presumed to be the repository of the final intentions of the parties in regard to the subject-matter of the agreement; and that it excludes proof of any other prior or contemporaneous parol stipulations which would contradict the writing, is abundantly settled, and should not, on account of its importance, be relaxed in any degree. If the writing does not speak the truth, then there is a way to make it do so; but until it is impeached in some of the legal or equitable modes, it must stand as the final determination of the parties.

Pierse v. Bronnenberg's Estate, 81 N.E. 739.

The appellant's defense is, and he sought, but was not permitted, to introduce parol evidence to prove, that at the time of the execution of the deed the appellee agreed as a part of the consideration therefor to assume the payment of the taxes on the land for the year 1917. The warranty contained in the deed, being general, covers all incumbrances on the land, including the taxes for the current year. And to admit the evidence sought to be introduced by the appellant would not only import a new element into the contract, to-wit, a promise by him to pay the taxes on the land for the year 1917, but would also contradict the express language of the deed itself, by excluding the taxes for that year from the covenant against incumbrances therein contained.

Martin v. Partee, 121 Miss. 483, 488, 83 So. 673; Hicks v. Sullivan, 127 Miss. 148, 89 So. 817.

The fact that the appellee had knowledge of the existence of an incumbrance on the land at the time of his purchase thereof is no defense to the warrantors.

Huvch v. Andrews, 20 N.E. 581; Sutton v. Cannon, 135 Miss. 368, 100 So. 24; Van Ness v. Phosphate Co., 53 So. 281, 283.

If we go with the appellant in her construction of the word "taxes" and say that it included drainage assessments, still under the plain terms of the contract, the appellee only assumed drainage assessments for the year 1930 alone, and that was all appellant required of him.

In a suit to specifically enforce a contract for the sale of lands, the complainant must allege and prove a title free from reasonable doubt.

Union & Planters Bank & Trust Company v. Corley, 161 Miss. 282, 133 So. 232.

OPINION

Griffith, J.

The parties hereto, on March 19, 1930, entered into a written contract for the sale by appellant and the purchase by appellee of a certain sufficiently described farm in Bolivar county. As part of the purchase money appellee agreed to assume the balance due on a mortgage to the Federal Land Bank and also "to assume all 1930 taxes on place." The contract stipulated that with the exception of the two items mentioned, appellant should have and be required to convey "a good and valid unincumbered fee simple title." Appellee, the purchaser, having declined to accept a deed and to pay the purchase money due to be paid on the delivery of deed, appellant filed her bill for specific performance. Appellee answered; and, among others, he interposed the defense that appellant was not possessed of an unincumbered title to the property, not counting the Federal Land Bank loan and the taxes for 1930; but that the property was further incumbered by a drainage tax lien extending through a period which would not expire until the year 1945.

There is an agreed statement of facts in the record that the lands involved are within the Labon Bayou drainage district, which was organized in the year 1920 under chapter 195, Laws 1912 and chapter 269, Laws 1914, and amendments thereto. That in the year 1920 bonds of the said district were issued in the sum of two hundred and forty-six thousand dollars maturing annually over a period of twenty-five years from the said year 1920, and that in 1922 there was a second issue of bonds in the sum of fifty thousand dollars, maturing annually over a period of twenty years; that at the time the bonds were...