Harvey v. Daniels

• Decision Date: 25 June 1923
• Docket Number: 22851
• Court: Mississippi Supreme Court
• Parties: HARVEY v. DANIELS

96 So. 746

133 Miss. 40

HARVEY v. DANIELS

No. 22851

Supreme Court of Mississippi

June 25, 1923

Division A

(Division A.) January 1, 1920

FRAUDS STATUTE OF. Land contract, though within statute of frauds and unenforceable not void; until its affirmance by vendor of land contract within statute of frauds, relation of parties that of vendor and purchaser, and not that of landlord and tenant; vendor, disaffirming land contract within statute of frauds, not entitled to recover from purchaser for use and occupation of premises for period between making of contract and disaffirmance.

A contract for the sale of land, although within the statute of frauds and unenforceable, is not void, and until disaffirmed the relation between the parties is that of vendor and vendee, and not that of landlord and tenant; and where the vendor disaffirms the contract he is not entitled to recover from the vendee for the use and occupation of the premises during the period between the making of the contract and its disaffirmance.

HON. S F. DAVIS, Judge.

Appeal from circuit court of Humphreys county, HON. S. F. DAVIS Judge.

Action by J. B. Daniels against Robert Harvey. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Mortimer & Sykes, for appellant.

Daniels sold Harvey, verbally, a house and lot in Belzoni for the sum of three hundred dollars. Ten dollars ($ 10) was paid in cash and the balance of three hundred dollars, was to be paid monthly until the whole sum was paid. Thereafter Harvey did make payments on the purchase money and when he had paid him (Daniels) two hundred and eighty three dollars, tendered him the additional seventeen dollars and demanded his deed. Daniels refused to give him the deed and thereupon demanded back his property. Subsequently he brought an action of ejectment against Harvey for the possession of his property, and also demanded rents from Harvey for the same during the time Harvey had been living in it, and also demanded five hundred dollars as damages.

It must be borne in mind that at the time Harvey entered into the possession of the premises he did not enter thereon as a tenant but as a purchaser, under a perfectly valid contract. A contract which does not comply with the statute of frauds is not void. It is merely unenforceable and while this contract could not be enforced by Harvey, yet it was a valid contract, and having entered upon the premises as a purchaser he could not be held to Daniels for any rent or damages prior to the time the contract was rescinded. Bear in mind that Harvey was at all times willing and anxious to carry out the contract, and that Daniels, the vendor, was the party who refused to carry it out.

When the vendee has been let into possession of land under an oral contract of purchase and refused to complete the contract, he is liable for the reasonable value of the use of the premises during his occupancy . . . It is otherwise, however, where the vendor is the one who refuses to perform and takes advantage of the defense of the statute. In such a case the vendee cannot be held liable for use and occupation prior to the vendor's disaffirmance of the contract. 25 R. C. L., 720, sec. 336, and authorities cited; 25 R. C. L., 725, sec. 372, and authorities; L. R. A. 1916 D., 469; Grainger v. Jenkins (Ky.), L. R. A. 1915 E, 405; Bancroft v. Woodwell, 13 Johnson, 489; Patterson v. Stoddard, 47 Me. 355, 74 Am. Dec. 490; 25 R. C. L. 731, sec. 379.

Certain charges to the jury were erroneous in that they fail to instruct the jury that Daniels was entitled to recover no rent for the time the property was occupied by Harvey prior to June 28, 1920, which was the time Daniels rescinded the contract, also the charges are erroneous because Harvey was liable for no damages to the property prior to June 28, 1920, at which time he occupied it as a purchaser and not as a tenant, and the testimony shows that the only damage Daniels ever suffered was the deprivation of the use of his property from the 28th of June, 1920, to August 23, 1921, which was the time the suit was tried, and the damage for this could be only the reasonable rental value for the property for that time, and in his declaration he expressly limited his damages for the rent subsequent to June 28, 1920, at one hundred dollars. Therefore, the jury should not have been authorized to return a verdict in his favor for any damages other than the rental value from June 28, 1920, which he limited at one hundred dollars and the five hundred dollars referred to in the instructions was all together erroneous both under the law and the evidence.

H. F. Jones, for appellee.

I would be ready to grant the contention and right of the appellant to recover the payments if there were no fault on his part, but no fault is shown in the vendor until the 28th day of February, 1920, when the contract should as laid in its terms, when he was still in default seven months' payments. Under the contract which defendant relies upon, the evidence here, and the specific terms of his oral contract, as alleged by him, discloses that he was the first to breach it, not once but from the first, and if this be held to have been waived by the receipt by the vendor, Daniels, of payments, the final breach was his failure to pay at the expiration of the term, January 1, 1920.

For cases referring to the rights of a vendor as to recovery of purchase money paid, where the vendee fails or refuses to perform the contract, reference is here made to the very exhaustive notes under Hurley v. Anicker, L. R. A. 1918 D, 540.

Plaintiff is entitled to recover rents from the date of institution of the suit to the date of trial, and this was not enforced but abandoned in instructions, which upon another trial could be recovered. Dean v. Tucker, 58 Miss. 487; Y. & M. V. R. R. Co. v. Lakeview Traction Co., 56 So. 393.

The measure of damages is compensation for time plain...