Lundy v. Hazlett

• Decision Date: 11 April 1927
• Docket Number: 26375
• Citation: 112 So. 591,147 Miss. 808
• Court: Mississippi Supreme Court
• Parties: LUNDY v. HAZLETT. [*]

112 So. 591

147 Miss. 808

LUNDY v. HAZLETT. ^[*]

No. 26375

Supreme Court of Mississippi

April 11, 1927

Division B

Suggestion of Error Overruled May 16, 1927.

APPEAL from circuit court of Leflore county HON. S. F. DAVIS, Judge.

Action by Mrs. Lillie M. Hazlett against J. I. Lundy. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

H. C. Mounger, for appellant.

Our contention is that the various instruments being the written contract between the parties, control; that they plainly show that the land was sold as a tract and not by the acre and that no number of acres was mentioned or warranted; that no parol evidence was admissible to vary the terms of the written contract or to contradict it, either as to the sale being a sale by the acre or as to the number of acres; that no evidence of antecedent negotiations and transactions leading up to the sale were admissible on the part of the plaintiff; that all antecedent negotiations and transactions were merged in the written contract and in the deeds, which were the final evidence of the contract between the parties; further, that Wainwright was the exclusive agent, according to the terms of the contract between Lundy and Wainwright, for the sale of the place and that his authority was limited by this contract; that he had no right to make any representations as to acreage beyond the contract; that Lundy is not bound by any representations made by Casler and Giles, for according to the contract they were not employed by him, nor was Wainwright authorized to employ them, nor were they authorized to make any representations as to the acreage; and that Lundy is not bound by any representations made by any one of the three, however false or fraudulent they might have been.

We further claim that the action is barred by the six-year statute of limitations; that this is not a case of concealed fraud; that from the nature of the case, the doctrine of concealed fraud cannot apply; that the land was open and subject to inspection and after the plaintiff got possession of it and after the deed was passed, she could have had it surveyed; that the records and township plats were in the chancery clerk's office subject to inspection; and furthermore, that Lundy was under no duty after the sale to the plaintiff and had no control over the plaintiff to prevent her from ascertaining the true acreage.

I. The written contract controls. Carmichael v. Foley, 1 How. 592; Watson v. Owen (Miss. ), 107 So. 866; Progressive Bank of Summit v. McGehee (Miss.), 107 So. 876; McInnis v. Manning (Miss.), 95 So. 250-252; Hill v. Weil (Ala.), 80 So. 537; Cooper v Robinson Investment Co., 117 Miss. 108, 118, 77 So. 953; Baum v. Lynn, 72 Miss. 932; 4 Am. & Eng. Ency. Law (2 Ed.), page 795; Thompson v. Bryant, 75 Miss. 15; Johnson v. Johnson, 74 Miss. 552; Hightower v. Henry, 85 Miss. 479; Dodge v. Cutrer, 101 Miss. 846.

This was a sale in gross and not a sale by the acre. There is nothing ambiguous in the deed warranting the admission of parol evidence even to explain, much less to vary, the deed. 15 Cyc. 1216; Gulf Coal & Coke Co. v. Musgrove (Ala.), 70 So. 182; Hess v. Cheney, 3 So. 792; Eskridge v. Eskridge, 51 Miss. 527; Phipps v. Tarpley, 24 Miss. 598; Fulton v. McAfee (Miss.), 5 How. 763; 29 Am. & Eng. Ency of Law (2 Ed.), page 625; Kerr v. Kuykendall, 44 Miss. 143; Fleming v. Miller, 87 So. 277, 124 Miss. 721 at 723; 9 C. J., page 220; 4 Am. & Eng. Ency. Law (2 Ed.), 789; 29 Cyc., page 1585; Braswell v. Fisk (Ala.), 45 So. 71; Terry v. Rich (Ala.), 74 So. 76; Cox v. Collins, 88 So. 441; 33 A. L. R. 1050; 18 C. J. 287 and note; 39 C. J. 1312 et seq.; Seafood Co. v. Myers, 109 So. 674.

II. The cause of action was plainly barred by the six-year statute of limitations. The date of the deed is July 24, 1918. The declaration was filed September 12, 1925. This makes an interval of seven years and nineteen days. For this reason we were entitled to a peremptory instruction.

Plaintiff takes refuge in the exception of concealed fraud. Section 2473 (3109), Hemingway's Code. It devolves on the plaintiff to show that she could not with reasonable diligence have discovered the fraud sooner. We maintain that this is a case where the fraudulent concealment of the cause of action does not apply. Here was a case of land lying open. The section was not concealed and could not be concealed. The plats in the office of the chancery clerk clearly showed the number of acres and were not concealed and could not be concealed by Lundy from the plaintiff. There was nothing to prevent the plaintiff at any time, either before or after she got her deed, from having this tract of land surveyed. She had ample time and opportunity at any time after July 24, 1918, before the bar of the statute of limitations accrued to have the property surveyed and ascertain the number of acres. The defendant had no control over the county records and had no control over the different surveyors in the county. Thornton v. City of Natchez, 88 Miss. 1 [147 Miss. 812] at 20; Adams v. Belt, 100 So. 194; Gordon v. Anderson, 90 Miss. 684; Jones v. Rogers, 85 Miss. 838; Buckner v. Calcote, 28 Miss. 596; State v. Furlong, 60 Miss. 844; Hudson v. Kimbrough, 74 Miss. 346; Anderson v. Burnett, 5 How. 167; Fleming v. Grafton, 54 Miss. 84.

The plaintiff could have discovered the true number of acres by the exercise of reasonable diligence at any time after July 24, 1918, before the bar of the statute accrued, and this is not a case where the exception of concealed fraud applies.

Osborn & Witty and Means Johnston, for appellee.

I. Lundy's suit was defended in the lower court largely on the theory that any and all agreements between Lundy and Mrs. Hazlett were merged in the deed; that the deed is the only basis of Lundy's liability to Mrs. Hazlett; that the acreage was not guaranteed or warranted in the deed; and that no testimony as to representations made by Lundy to the real estate men or by them to Mrs. Hazlett was admissible on account of being violative of the parol evidence rule.

This is not a suit under the provision of the deed and is not a suit for breach of any express warranty. This is an action in deceit. It is purely an action in tort. It is nothing more or less than that and appellant's brief, which in the first twenty-two pages cites and quotes numerous authorities in regard to the parol evidence rule, is utterly beside the issue.

This action for deceit is certainly not new to the courts. The claim of Mrs. Hazlett for damages does not arise out of the provisions of the deed, but on account of the false and fraudulent representations which were an inducement to and caused Mrs. Hazlett to accept the deed and to pay over her money. Vincent v. Corbett, 47 So. 641, 94 Miss. 46. See, also, Hines v. Lockhart, 105 So. 449; McNeer v. Norfleet, 74 So. 577, 113 Miss. 611; Alexander v. Meeks, 96 So. 101, 132 Miss. 298; Oldham v. Memphis Stone & Gravel Co., 111 So. 357.

"Parol evidence is admissible to show fraudulent misrepresentations by the vendor as to the quantity of the land sold, though not in any manner incorporated in the deed consummating the contract." 10 R. C. L., page 1059.

II. Appellant relies on the six-year statute of limitations to bar this suit. It is true that the suit was not brought until slightly more than seven years after the land was purchased. However, we say that this case comes squarely within the provisions of section 2473, Hemingway's Code.

This cause of action was fraudulently concealed and it accrued under this statute only in October, 1924, at which time it was discovered and before which time it could not with reasonable diligence have been so discovered.

The rule has been laid down by this court and by countless other courts that where one against whom a cause of action exists by active misrepresentations or by any fraud or artifice or affirmative acts, lulls such other into security and thereby causes such other to refrain from searching the records or from discovering the cause of action, then this amounts to concealed fraud and the statute does not run. Buckner v. Calcote, 28 Miss. 432; State v. Furlong, 60 Miss. 839; Carrier v. R. R. Co., 6 L. R. A. 799; American Bonding Co. v. Fourth Nat. Bank, 91 So. 480; 17 R. C. L., page 859; Groendall v. Westrate, Ann. Cas. 1914B 906; 37 C. J. 975; Madole v. Miller, 119 A. 829, is a case almost identical with the case at bar. See, also, Bank v. Peary, 144 Mass. 313, 11 N.E. 81; Smith v. Blair, 133 Ind. 367, 32 N.E. 1123; Birks v. McNeill (Ia.), 170 N.W. 485; Harvester Co. v. Wilson, 210 S.W. 574; Gerry v. Dunham, 57 Me. 334; Bradford v. McCormick, 71 Iowa 129, 32 N.W. 93; Billingslea v. Whitelock, 112 Okl. 192, 240 P. 722. To the same effect, see Gamer Co. v. Gamage (Tex.), 241 S.W. 736; Cloyd v. Reynolds, 44 Pa. S.Ct. 81.

Independently of the statute, on broad general principles, Lundy by his conduct has estopped himself from pleading the statute of limitations. It has been held by this court and by the great weight of authority everywhere that one who by his fraudulent conduct deters another from bringing suit or discovering a cause of action against him is estopped to plead the statute of limitations. 37 C. J. 972; Waugh v. Gas. Co., L. R. A. 1917B 1253; Rosenthal v. Walker, 28 L.Ed. 397; Mathews v. Mathews, 6 So. 201, 66 Miss. 239; 25 Cyc. 1016; Kelly v. Wagner, 61 Miss. 299; Union Mortgage Co. v. Peters, 72 Miss. 1058, 18 So. 497, 500; Hyman v. Bank, 71 So. 598; Barnett v. Nichols, 56 Miss. 622; Dayhood v. Neely, 99 So. 440, 135 Miss. 14.

Appellant says that Mrs. Hazlett through herself and her husband did not use due diligence to discover the cause of action; that the true acreage was a matter of public record; that if Mrs Hazlett or her...