Hicks v. Sullivan

• Decision Date: 21 November 1921
• Docket Number: 22042
• Citation: 127 Miss. 148,89 So. 811
• Court: Mississippi Supreme Court
• Parties: HICKS v. SULLIVAN et ux

89 So. 811

127 Miss. 148

HICKS v. SULLIVAN et ux

No. 22042

Supreme Court of Mississippi

November 21, 1921

October 1921

APPEAL from chancery court of Sunflower county, HON. E. N. THOMAS Chancellor.

Bill by Ben Hicks against Luther Sullivan and wife, to enforce a vendor's lien. From a decree dismissing the bill, the plaintiff appeals. Reversed and remanded.

Decree reversed, and cause remanded.

Neil &amp Clark and Moody & Williams, for appellant.

The defendants below rested their case solely on the testimony of Mr. J. B. Small, which was to the effect that he heard a conversation between complainant and Luther Sullivan and that complainant agreed to pay off this lien. Mr. Small's testimony was introduced over the objection of complainant below where Mr. Small, in answer to interrogatory number five, undertook to testify as to the conversation and agreement made at the time the deed was passed, and Mr. Small took the stand and orally testified to substantially the same thing.

Without this testimony the complainant must have recovered in the court below. It has been clearly and unequivocally decided by this court that the effect of such evidence would not only import a new element into the contract, but would also contradict the express language of the deed itself. Martin v. Partee, 83 So. 673. This case is a clear announcement of the rule applicable to cases of this kind. 3 Ency. Evidence, 386; 2 Devlin on Deeds (3 Ed.), 914; but the rule in this state is that such evidence is inadmissible. Maxwell v. Chamberlin, 23 So. 266.

We respectfully submit that the decree should be reversed and a decree entered here fixing a lien on the lands in Sunflower county, Mississippi, in favor of appellant for the amount shown by the record to have been paid out by him in discharge of the lien on the land in Montgomery county.

Walter S. Chapman, for appellee.

I respectfully refer this honorable court to Mr. Small's testimony on pages from 49 to 55 inclusive, and also to pages 59 and 60 of this record. In the case of Duncan v Chaplin, 75 Miss. 445, Justice TERRAL, delivering the opinion of the court, states that a deed takes effect from delivery citing 2 Parsons on Contracts, page 762, therefore, when Luther Sullivan delivered his deed to Ben Hicks in fulfillment of their agreement just previously made, and Ben Hicks received the same without objection, the title to the lands exchanged was vested in each as described in their separate deeds, with the burden of paying the debt due Walker Woods resting on Ben Hicks.

OPINION

SMITH, C. J.

The appellant exhibited an original bill in the court below against the appellees, who are husband and wife, to establish and enforce a vendor's lien on certain land conveyed by him to the appellee, Cora Sullivan. The case was heard upon bill, answer, and proof, resulting in a decree dismissing the bill. The bill alleged in substance that the land was conveyed by the appellant to Cora Sullivan by deed reciting a cash consideration of five hundred dollars, but that the real consideration was the conveyance to the complainant by Luther Sullivan of certain other land by a general warranty deed that the land so conveyed to him by Luther Sullivan was incumbered by deed of trust placed thereon by Sullivan, and that the appellant was compelled to pay the debt secured...