Lewis v. Williams

• Decision Date: 16 October 1939
• Docket Number: 33797
• Citation: 186 Miss. 701,191 So. 479
• Court: Mississippi Supreme Court
• Parties: LEWIS et al. v. WILLIAMS et al

191 So. 479

186 Miss. 701

LEWIS et al. v. WILLIAMS et al

No. 33797

Supreme Court of Mississippi, Division B

October 16, 1939

Suggestion Of Error Overruled November 27, 1939.

APPEAL from the chancery court of Walthall county HON. R. W. CUTRER Chancellor.

Suit to cancel deeds by Patrick H. Williams and others against Tom Lewis and another. From the degree, the defendants appeal and the plaintiffs cross-appeal. Reversed and rendered.

Reversed and decree here for appellants.

Price Price & Phillips, of Magnolia, for appellants.

An oral promise to reconvey land is void under the statute of frauds because all contracts relating to land must be in writing.

Section 3343, Code of 1930; Miazza v. Yerger, 53 Miss. 135; Clearman v. Cotton, 66 Miss. 467, 6 So. 156; Campbell v. Bright, 87 Miss. 443, 40 So. 3; Palmer v. Spencer, 161 Miss. 561, 137 So. 491; Pardue v. Ardis, 101 Miss. 884, 58 So. 769; Taylor v. Sayle, 163 Miss. 822, 142 So. 3; Beaman v. Buck, 9 S. & M. 207; Nelson v. Lawson, 71 Miss. 819, 15 So. 798.

An oral agreement to reduce a parol promise to reconvey to writing is also void and does not take the case out of the statute of frauds.

Box v. Stanford, 13 S. & M. 93; Berry v. Bullock, 81 Miss. 463, 33 So. 410; Howie v. Swaggard, 142 Miss. 409, 107 So. 556.

Even where there is an attempted written contract concerning land and the court finds that same is insufficient the whole contract is void under the statute of frauds.

McGuire v. Stevens, 42 Miss. 724; Rector Provision Co. v. Sauer, 69 Miss. 235, 13 So. 623; Scherck v. Moyse, 94 Miss. 259, 48 So. 513; Postal Telegraph & Cable Co. v. Friedhof, 127 Miss. 498, 90 So. 182: Queen City Hoop Co. v. Barnett, 127 Miss. 66, 89 So. 819.

An oral contract to sell, reconvey, or, for the sale of, land will not be specifically enforced even though it be partially performed.

Milam v. Paxton, 160 Miss. 562, 134 So. 171; Howie v. Swaggard, 142 Miss. 409, 107 So. 556.

Express trusts evidenced by alleged oral agreements are void under the statute of frauds.

Sec. 3348, Code of 1930.

There can be no resulting trust because the asserted trust arises, if at all, by virtue of alleged oral agreements, not from the transaction itself such as payment of the purchase money by the asserted cestui que trust at the time, or before the purchase of the land. Neither is there any evidence to support such a conclusion by the lower court.

Bush v. Bush, 134 Miss. 523, 99 So. 151; McCarroll v. Alexander, 48 Miss. 128; Logan v. Johnston, 72 Miss. 185, 16 So. 231; Gee v. Gee, 32 Miss. 190; Miazza v. Yerger, 53 Miss. 135; Brooks v. Shelton, 54 Miss. 353; Wax v. Pope, 175 Miss. 784, 168 So. 54.

The fact that the appellants, Tom Lewis and Edna Washington, bought the land with money which they, themselves, borrowed and obligated themselves to repay does not tend to establish a resulting trust since the appellees nor either of them obligated themselves to repay same or help so to do.

Bowman v. O'Reilly, 31 Miss. 261.

The assertion by Patrick H. Williams that he could not buy all the land from the state in his own name under the law and then put parcel No. 1 in Edna Washington's name does not establish a trust.

Alsworth v. Dodtz, 31 Miss. 32.

Regardless of the statute of frauds regarding land contracts, there was no consideration for the alleged oral promises to reconvey or to hold in trust because the only promise to constitute a mutuality of promises was one to answer the debt, default and miscarriage of another and this promise was not in writing.

Sec. 3343, Code of 1930; Wenger v. First Nat. Bank, 174 Miss. 311, 164 So. 229.

The court erred, first, in allowing Patrick H. Williams to challenge his own deed to Tom Lewis covering parcels Nos. 2 and 3 and then by its decree cancelling same on the ground that it was voluntary, and, second, by allowing Patrick H. Williams to vary the terms of the deed to him by Tony Williams and children, because: (1) Parol evidence by Patrick H. Williams was inadmissible to vary the terms of the deeds. (2) A deed of conveyance is valid as between the parties and both are estopped from challenging it even though it is voluntary. (3) Even in cases of conditions subsequent (which we do not have here) a deed of conveyance is construed most strongly against the grantor.

Blaylock v. Lonn, 157 Miss. 783, 128 So. 555; State Highway Dept. v. Duckworth, 178 Miss. 35, 172 So. 148; Welch v. Gant, 161 Miss. 867, 138 So. 585; Wright v. Lott, 155 Miss. 185, 124 So. 270; Edrington v. Stephens, 148 Miss. 583, 114 So. 387; Jourdan v. Albritton, 147 Miss. 651, 111 So. 591; Kendrick v. Robertson, 145 Miss. 585, 111 So. 99; Bullard v. Brown, 93 Miss. 104, 46 So. 137; Rogers v. Rogers, 43 So. 434; Day v. Davis, 64 Miss. 253, 8 So. 203 Dixon v. Milling, 102 Miss. 449, 59 So. 804; Wynn v. Kendall, 122 Miss. 809, 85 So. 85; N. O. G. N. Railroad Co. v. Belhaven Heights Co., 122 Miss. 190, 84 So. 178; Lowrey v. Lowrey, 111 Miss. 153, 71 So. 309; Isler v. Isler, 110 Miss. 419, 70 So. 455; Lee v. McMorries, 107 Miss. 889, 66 So. 278; Wyatt v. Wyatt, 81 Miss. 219, 32 So. 319; Soria v. Harrison County, 96 Miss. 109, 50 So. 443; Y. & M. V. R. R. Co. v. Traction Co., 100 Miss. 281, 56 So. 393; Beasley v. Beasley, 177 Miss. 522, 171 So. 680; Vasser v. Vasser, 23 Miss. 378.

Eda Washington's patent to parcel No. 1 could not be collaterally attacked and was presumed to have been legally issued; therefore, the lower court could not limit it to a trust as was done by its decree.

Surget v. Doe, 24 Miss. 118; Bledsoe v. Little, 4 How. 13; Dixon v. Doe, 23 Miss. 84; Nelson v. Sims, 23 Miss. 383; Gastrell v. Phillips, 64 Miss. 473, 1 So. 729; Huber v. Freret, 138 Miss. 238, 103 So. 3.

The mere breach of a parol promise to reconvey land, or, to reduce such an agreement to writing, or any such parol promises and agreements held void under the law is not sufficient to justify a court in holding that there is a resulting trust on the ground of fraud, and there is no evidence in the record to support such a decree.

Box v. Stanford, 13 S. & M. 93; Miazza v. Yerger, 53 Miss. 135; Berry v. Bullock, 81 Miss. 463, 33 So. 410; Moore v. Crump, 84 Miss. 612, 37 So. 109; Howie v. Swaggard, 142 Miss. 409, 107 So. 556.

There must be clear, convincing proof of fraud before equity can or will imply a trust on this ground.

Moore v. Crump, 84 Miss. 612, 37 So. 109.

The court will note that in December, 1934 Tom Lewis conveyed 80 acres of this land, parcel No. 3, to Arthur Williams (he is not an heir of Tony Williams) for a stated consideration of $ 100.00. Arthur Williams was undoubtedly a bona fide purchaser of this land without notice of any infirmities in the title.

Pat Williams could not have been acting for the heirs and estate of Tony Williams during these transactions.

The court erred in assessing Edna Washington and Tom Lewis for the use and occupancy of the land for the years 1934 and 1935 because this bill of complaint was not filed until December, 1935.

Harvey v. Daniels, 133 Miss. 40, 96 So. 746.

Luther W. Felder, of McComb, for appellees.

Edna Washington, one of the defendants, was instrumental in securing the patent in her name, covering 160 acres of the lands in controversy, upon which was located practically all of the improvements, by promising to furnish the money with which to pay the purchase price to the State and by promising that she would carry out the intention of Patrick H. Williams to secure the title for the deceased and his heirs by reconveying the property patented to her back to Patrick H. Williams, for the use and benefit of the deceased and his heirs, if her money was paid to her in October of that year. And by being actively instrumental in producing the result by agreeing to furnish the money with which to buy the land and by agreeing to reconvey the lands, she held the same in trust for the use and benefit of the deceased and his heirs.

Counsel for appellants used many pages and cited numerous decisions in an effort to undertake to show that the court erred in holding that Edna Washington held the title to the lands patented to her in trust for the benefit of the deceased or his heirs; however, we think he overlooked the decisions of the Supreme Court of this state, which announce the principle that when a person acquires the title to property from another, by fraud or other wrong, he is held to hold the same in trust for the benefit of those to whom, otherwise, the title would have gone, and that he is only trustee for such persons.

Ragsdale v. Ragsdale, 68 Miss. 92, 8 So. 315; Benbrook et al. v. Yancy, 96 Miss. 536, 51 So. 461; Moore et al. v. Crump et al., 84 Miss. 612, 34 So. 109.

The trust declared by the trial court was what is defined in law as a constructive trust or a trust by implication of law and does not come within the statute, Sec. 3348, Code of 1930; 26 R. C. L., 1232; 26 R. C. L. 1233, Sec. 79; Moore et al. v. Crump et al., 84 Miss. 612, 37 So. 109.

The court correctly held that defendant, Tom Lewis, secured the quitclaim deed from Patrick H. Williams, covering the lands patented to Williams, by fraud and properly cancelled said quitclaim deed and claim of Tom Lewis, the result of which was to place the title thereto in Patrick H. Williams for the use and benefit of the heirs of Tony Williams, deceased.

The court correctly held that Arthur Williams was not a bona fide purchaser of the land conveyed to him by the defendant, Tom Lewis, and correctly decreed a cancellation of this deed, and in quieting the title thereto in the complainant.

Regardless of everything said in the brief of appellants and in the brief of appellees, if the complainant, Patrick H. Williams was employed to secure the lands of the deceased from the state...