Lowrey v. Lowrey

• Decision Date: 27 March 1916
• Citation: 111 Miss. 153,71 So. 309
• Court: Mississippi Supreme Court
• Parties: LOWREY v. LOWREY

71 So. 309

111 Miss. 153

LOWREY v. LOWREY

Supreme Court of Mississippi

March 27, 1916

March 1916

APPEAL from the chancery court of Alcorn county, HON. T. L. LAMB Chancellor.

Suit by G. W. Lowrey against C. Lowrey. From a judgment for plaintiff, defendant appeals.

Appellee filed a bill in chancery against appellant, his son, seeking to cancel two deeds executed by himself and wife conveying to appellant two tracts of land. It is charged in the bill and admitted in the answer that no money was paid for the land but that the real consideration for the conveyance was that appellant was to take appellee and his wife into his home and support and maintain them for life. Appellee charged that he and his wife had received such treatment at the hands of appellant and his family that, after having lived there for several years, they were forced to leave, all of which the answer denies. On the hearing the chancellor entered a decree adjudicating a monthly allowance to be paid to appellee and his wife by appellant, and fixed a lien upon the land to secure the amount so adjudicated. From this decree appellant appeals.

Reversed and remanded.

Thomas H. Johnson, for appellant.

Under the authority of Dixon v. Milling, 59 So. 804, 43 L R. A. (N. S.), 916, the court properly held that appellee was not entitled to a cancellation of the deeds.

We may concede that the consideration for the deeds was as the court found it to be; and that appellant violated his agreement to support and maintain, but we confidently contend that the court committed reversible error in fixing a lien upon the lands and upon the proceeds arising from the sale of lumber manufactured from timber cut from the lands.

Such a lien is in its nature and effect a vendor's lien by whatever name called, or howsoever designated; and it is well settled that a vendor's lien is never raised unless there is "a fixed amount of money due from the vendee to the vendor as purchase money for the land conveyed." Griffin v. Byrd, 74 Miss. 32; Patterson v. Edwards, 29 Miss. 67; 39 Cyc. 1791.

In order that a vendor's lien may be enforced the amount payable by the vendee must be fixed, payable at all events, at a certain time, and in a certain manner; and none of these conditions are met in the case at bar, on the other hand the bill alleges that the consideration of two hundred dollars recited in each deed was not the consideration for the conveyances and that no part of the same was paid; that the true consideration was the support and maintenance of the grantor and his wife for life.

It is specifically held in the great majority of the courts of this country that such an agreement or promise does not entitle the vendor to a lien, as the consideration is of such nature that the court cannot ascertain and define the amount of the charge to be thus imposed upon the land. We take it that the well considered case of Lee v. McMorries, 66 So. 278 (Advance Sheets), is conclusive against appellee on this point. See also, 39 Cyc. 1792, and cases cited in Note 61.

The correctness of the reason for the rule just given is clearly demonstrated in the decree of the court in the case at bar; for, in making a monthly allowance for the support of appellee and his wife for life, the ultimate amount even is left uncertain and indefinite--it is dependent upon not one but two contingencies, viz., the length of time appellee and his wife shall both live, and the length of time that one or the other of them shall live, so that it is impossible to say even by the decree of the court what amount is charged against the lands.

Among the cases cited in the note 61 above referred to we desire to call the attention of the court especially to the case of Burroughs v. Burroughs (Ala.), 137 Am. St. Rep. 59, and 28 L. R. A. (N. S.), 607, which is also cited and quoted from in the Lee v. McMorries Case; because the allegations in that bill and the bill in the case at bar, together with the deeds exhibited thereto are almost identical in their substantial averments. It is alleged in both bills that the money consideration recited in the deeds in both cases was not the true consideration and was never paid; that the true consideration was the support and maintenance of the grantor for life; and while the bill in the Burroughs Case specifically prays for the enforcement of the vendor's lien in so many words, and the bill in the case at bar simply prays that a lien may be fixed, such a lien is in its very nature and effect a vendor's lien. The court in that case held that the "complainant, as upon the averments of the bill, neither had nor has a vendor's lien. No debt, ascertained and definite, was created by the agreement of the parties as for the sale and conveyance of the land."

There is no question but that the court below erred in fixing a lien upon the lands and the proceeds from the sale of lumber manufactured from the timber cut from the lands.

W. C. Sweat, for appellee.

The court below having found that the appellant had failed to comply with his agreement to suport the appellee and his wife, the appellee was entitled to some form of relief. The question then arises to what kind of relief was he entitled. He had conveyed his property to the appellant for the purpose of securing support for himself and his wife. The appellant in accepting that conveyance on these conditions was thereby obligated to furnish them support. The appellant is still in possession of the land. It has not been conveyed to an innocent purchaser without notice. He has agreed to support the grantor and his wife during...