Hardin v. West

• Decision Date: 17 October 1932
• Docket Number: 29945
• Citation: 163 Miss. 839,143 So. 697
• Court: Mississippi Supreme Court
• Parties: HARDIN v. WEST

143 So. 697

163 Miss. 839

HARDIN v. WEST

No. 29945

Supreme Court of Mississippi

October 17, 1932

(Division A.)

1. VENDOR AND PURCHASER.

Where purchaser accepting deed knew of outstanding trust deed solvent vendors' noncompliance with alleged oral promise to secure release from incumbrancer by paying to incumbrancer cash received from purchaser held not fraud nor available to purchaser as defense to action on note secured by vendor's lien.

2. VENDOR AND PURCHASER.

Purchaser taking no steps toward rescission except as answer to suit filed against him nearly three years after accepting deed held not entitled to rescission on ground that failure to discharge mortgage was fraud upon him and that he did not obtain good title.

3. APPEAL AND ERROR.

Where appellee objected below to introduction of trust deed releases because not made exhibits to answer on cross-bill objection that no entry was made on margin of record held unavailable in Supreme Court (Code 1930, section 2155).

Division A

APPEAL from chancery court of Calhoun county.

HON. N. R. SLEDGE, Chancellor.

Bill by Dr. J. A. Hardin against J. G. West, and cross-bill by defendant against plaintiff. The chancery court dismissed the bill and sustained the cross-bill in part, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Creekmore & Creekmore, of Jackson, for appellant.

A purchaser of land accepting a warranty deed with full knowledge of an outstanding encumbrance is not entitled to relief from payment of the balance of the purchase price until release was secured, since by accepting deed with warranty she is remanded to security and protection thereby carved out for herself.

Stokely v. Cooper, 150 Miss. 143, 116 So. 538.

Where there has been no eviction by reason of a removable encumbrance and the vendee has not extinguished such encumbrance and it is still outstanding there is a mere technical breach of the covenant, and the damages recoverable on the covenant are but nominal, and in a very large sense the rights and obligations under the law as between covenantor and covenantee under a covenant against encumbrances are the same as those of the covenantor and covenantee under a covenant of title.

Simon v. Williams, 140 Miss. 854, 105 So. 487, 44 A.L.R. 402.

Where the vendee, at the time of his purchase, knew of the defects of title, or the existence of encumbrances on the estate and took a deed with covenants of warranty, he cannot at law avoid a recovery, even after eviction, but must rely upon the covenants. Nor will a court of chancery in such a case, as a general rule, grant any relief; but will remit the party to his covenants, such being the remedy provided for himself, unless the vendor is insolvent.

Wailes v. Cooper, 24 Miss. 208.

Equity will not relieve a purchaser in possession under warranty deed, from payment of the purchase money in the absence of fraud, on the ground of defect of title, unless there has been an eviction, or unless the covenants of title afford no indemnity by reason of the insolvency.

Wofford v. Ashcraft, 47 Miss. 641.

A vendee of land claiming the right of rescission against his vendor must move promptly after the accrual of such right. If he continues to treat the property as his own awaiting developments before determining whether he will claim rescission, he will not be permitted to experiment with a view of seeing how his purchase will turn out, whether a market goes up or goes down. He must act promptly and within a reasonable time after the accrual of his right to rescind.

Simon v. Williams, 140 Miss. 854, 105 So. 487.

W. J. Evans, of Calhoun City, and J. H. Ford, of Houston, for appellee.

The deed of trust to the Bank of Houston was not cancelled because no entry was made on the margin of the record of the deed of trust, as required by statute.

Section 2155, Code of 1930.

All facts were found against appellant and in favor of appellee by the lower court. The chancellor heard all the evidence and saw the witnesses while they were testifying.

When appellant breached his agreement, appellee had the right either to carry out his part of the contract and sue for damages, or to rescind it and ask the return of his money paid thereon with damages for the breach.

39 Cyc. 1430.

The purchaser may rescind where the vendor without right has sought to enforce a forfeiture, and has placed himself in a position where he cannot perform.

39 Cyc. 1421.

The proof showed, and the chancellor found, that appellee acted promptly in asking for a rescission.

39 Cyc. 1429; 27 R. C. L. 658, par. 419.

Appellee was entitled to the relief prayed for in the cross-bill and granted him by the decree appealed from.

Callicott v. Horn, 137 So. 190; 27 R. C. L. 647-648, par. 409.

Appellee was entitled to the relief sought and which was granted him on the facts found by the chancellor, and the law.

Parham v. Randolph, 4 How. 435, 35 Am. Dec. 403; Rimer v. Dugan, 39 Miss. 477, 77 Am. Dec. 687; Bonner v. Bynum, 72 Miss. 442, 18 So. 82; Brown v. Coker, 129 Miss. 411, 92 So. 585; Jones v. Metger, 132 Miss. 247, 96 So. 161; Virginia Trust Co. v. Catoe, 134 Miss. 722, 99 So. 261; Fay & Egan Co. v. Louis Cohn, 158 Miss. 733, 130 So. 290; Callicott v. Horn, 137 So. 190.

Appellee did not have to surrender possession of the land before asking a rescission. He had paid the taxes on it and put substantial improvements thereon, and the use of it did not exceed these expenditures.

39 Cyc. 1425-1426; Rimer v. Dugan, 39 Miss. 477, 77 Am. Dec. 687; Perry v. Boyd, 126 Ala. 169, 28 So. 711, A. S. R. 17.

OPINION

McGowen, J.

Hardin, the appellant, filed a bill in the chancery court seeking to enforce a vendor's lien on certain land in Calhoun county against J. G. West, the appellee. The chancery court dismissed the bill, and sustained in part the cross-bill, from which Hardin prosecuted this appeal.

The vendor's lien sought to be enforced was on four small tracts of land aggregating eighty acres, particularly described, in Calhoun county.

On January 3, 1928, Hardin executed a deed to West reciting a consideration of four thousand five hundred dollars, with two thousand dollars cash and a note for two thousand five hundred dollars due in sixty days from that date. The deed expressly retained a vendor's lien on the lands therein described as security for payment of the note of even date.

The bill was filed October 7, 1930, and prayed that the land be sold and the proceeds applied to the payment of the note, and further that the proceeds from a certain fifty-seven acres of the land be applied in discharging a certain mortgage held by the First Joint Stock Land Bank in New Orleans, Louisiana, and the balance be applied to the payment of the appellee's note.

The appellee, West, filed an answer and cross-bill charging, in substance, that Hardin had agreed to apply the two thousand dollars cash payment in satisfaction of the existing mortgage to the First Joint Stock Land Bank and had not complied with that agreement, and further alleging that on the date of the execution of the deed, there existed a mortgage on the land executed by Hardin to the Grenada Bank, and also one to the Bank of Houston, of both of which West had no knowledge. He knew of the mortgage to the First Joint Stock Land Bank, but relied on Hardin's promise and agreement to have it canceled within a very short time after the execution of the deed; and alleged that this failure to discharge the mortgage to the Land Bank was a fraud upon him and that he did not get a good title to a major portion of the land conveyed, and was, therefore, entitled to a rescission of the transaction and to recover from Hardin the two thousand dollars cash payment made by West, and that Hardin was insolvent. There was no allegation that West had been evicted from the premises, or that his possession had been disturbed, or that he had ever paid, or offered to pay, his note for two thousand five hundred dollars or any part thereof.

Hardin answered the cross-bill stating that he admitted giving the deeds of trust on the land to the Bank of Houston and the Grenada Bank and the renewals to the Grenada Bank, but claimed that they had been canceled of record, and that the inclusion of said land in the renewals to the Grenada Bank was by error; denied that he promised to pay the two thousand dollars to the Land Bank and immediately procured and have recorded a release of the land from the deed...