Marron v. Scarbrough

• Decision Date: 17 January 1958
• Citation: 44 Tenn.App. 414,314 S.W.2d 165
• Parties: Mrs. Naytine J. MARRON, Appellee, v. B. M. SCARBROUGH, Appellant.
• Court: Tennessee Court of Appeals

Page 165

314 S.W.2d 165

44 Tenn.App. 414

Mrs. Naytine J. MARRON, Appellee, v. B. M. SCARBROUGH, Appellant.

Court of Appeals of Tennessee, Western Section, at Jackson.

Jan. 17, 1958.

Certiorari Denied by Supreme Court June 6, 1958.

Taylor, Costen & Taylor, and Lloyd C. Kirkland, Jr., Memphis, for appellant.

Davis & Davis, and L. E. Gwinn, Memphis, for appellee.

BEJACH, Judge.

This cause involves an appeal in the nature of a writ of error by B. M. Scarbrough, who was defendant in the lower court, from the verdict of a jury and decree entered thereon in the Chancery Court of Shelby County, Tennessee, against him and in favor of Mrs. Naytine J. Marron, who was complainant in the lower court. For convenience, the parties will be styled, as in the lower court, complainant and defendant, or called by their respective names. During the latter part of 1952, complainant and defendant were negotiating for the sale by complainant to the defendant of 9 1/2 acres of land on or near the Raleigh-LaGrange Road in Shelby County, Tennessee, which was at that time owned by complainant and which was part of and adjacent to the tract on which her home stands. It was the contention of complainant that she and the defendant agreed that the 9 1/2 acres to be sold to him would be used for subdivision purposes only, and that no gravel should be mined from same except for the purpose of constructing streets in such subdivision, and that any pits resulting from such removal of gravel would be filled and leveled. On January 14, 1953, defendant went to the office of Mr. Wils Davis, an attorney of the Memphis Bar, where complainant was employed as secretary, for the purpose of entering into a contract for the sale by complainant of the 9 1/2 acres which is involved in this law suit. After some discussion, in which defendant refused to agree to the restrictions insisted on by complainant, and especially to the permanent imposition of such restrictions, in which discussion complainant's employer, Mr. Wils Davis, a prominent member of the Memphis Bar, participated, the following restriction was dictated by Mr. Davis to complainant and typed by her into the contract which was then signed by both complainant and defendant, to wit:

'It is understood and agreed that this property is to be conveyed subject to the following restrictions: For a period of ten years, no gravel plant shall be established upon said premises and, in the event any gravel is removed from said premises, then in that event, the holes and pits that are opened up for the purpose of taking gravel therefrom shall be filled and leveled so that the property can be used for residential purposes.'

Sometime prior to February 3, 1953, complainant, herself, typed and delivered or had delivered to Mr. Robert E. Joyner, a Memphis attorney who examined the title for defendant, a warranty deed which conveyed the 9 1/2 acres here involved to defendant. The restrictive agreement which had been incorporated in the contract of sale was omitted from this warranty deed. Neither defendant nor his attorney had anything to do with the preparation of the deed. This deed was filed for record February 17, 1953, and is recorded in Record Book 3069, page 333, in the Register's Office of Shelby County, Tennessee. Defendant has held title to the land thereby conveyed since that date. On or about April 11, 1955, defendant, Scarbrough, entered into a lease agreement with the Memphis Stone and Gravel Company, which company was joined as a defendant in the lower court. The final decree dismissed complainant's suit as to said company, and no appeal has been taken from that part of the decree; consequently, the Memphis Stone and Gravel Company is no longer involved in this litigation. Under the terms of the lease, which included other lands of defendant adjoining same, the Memphis Stone and Gravel Company was granted the right to mine and remove gravel. Said company thereupon proceeded to mine and has continued to mine and remove gravel from the 9 1/2 acres of land involved in this suit, although this was done over the protest of complainant. In a separate contract entered into between defendant and one Walter Shepard, the latter was employed to fill and level the holes and pits left by the digging operations. The gravel removed from said 9 1/2 acres has been and is being processed at a gravel plant located in that vicinity but not on defendant's land.

Complainant filed her original bill in this cause November 22, 1955. Complainant's bill alleges that in the negotiations prior to the drafting of a contract for the sale of the land in question, she and the defendant agreed:

'That for a period of ten years no gravel would be mined or removed from said premises, unless said property was opened for residential subdivision purposes, and then only such amount as would be necessary for building streets in said subdivision, and, if any gravel was so removed, the holes or pits that were opened up by the removal thereof would be filled and leveled so that the property could be used for residential purposes.'

The bill alleges that it was the intention of the parties that this understanding and agreement should be embodied in the deed of conveyance; but that when the deed was prepared, executed and delivered, the said agreement was inadvertently omitted from said deed. Neither the deed nor the contract of sale were exhibited with the bill. The bill prays for reformation of the deed but not of the contract of sale.

A copy of the deed was attached as an exhibit to defendant's answer, whereupon leave of court having been obtained, complainant filed an amended and supplemental bill which alleges that in the contract of January 14, 1953, complainant intended to restrict defendant in accordance with the restrictive agreement alleged by complainant in her original bill, and that such agreement was inadvertently omitted from the deed. The amended and supplemental bill also alleges a breach by defendant of the contract of sale. It alleges, also, that such agreement was inadvertently omitted from the deed, and that in drafting the contract of sale, the term 'gravel plant' was used to cover all operations in connection with the removal of gravel. It also alleges fraud on the part of defendant, in that the term 'gravel plant' was used by him in a technical sense not understood by complainant. A photostatic copy of the contract of sale is exhibited with the amended and supplemental bill, which alleges mutual mistake in the preparation of the deed and alleges that omission of the restrictive agreement from the deed was due to inadvertence on the part of complainant. The amended and supplemental bill prays for construction of the contract in accordance with the contention of complainant and, in the alternative, prays that the contract and the deed be reformed.

Defendant's answer to the amended and supplemental bill denies any fraud on his part, or any superior knowledge, and alleges that the contract was drawn by complainant's attorney. It also denies any oral agreement different from the agreement contained in the written contract of sale. Thereafter, on January 15, 1957, complainant filed an amendment to the amended and supplemental bill, which alleges that it was the intention of the parties to embody in the deed the agreement made at the time of entering into the written contract of sale, worded as now contended for by complainant, and alleges mutual mistake as a ground for reformation.

At the hearing, the Chancellor on his own motion impaneled a jury and submitted to the jury the following issues of fact, which, together with the jury's answers thereto, are as follows:

'I.

'Was the sale of the land sold by the complainant Mrs. Naytine J. Marron, to the defendant, B. M. Scarbrough, conditioned upon an express agreement between those parties that:

'For a period of ten years no gravel would be mined or removed from said premises, unless said property was opened for residential subdivision purposes, and then only such amount as would be necessary for building streets in said subdivision, and, if any gravel was so removed, the holes or pits that were opened up by the removal thereof would be filled which, by mistake or inadvertence, was not included in the contract of sale dated January 14, 1953?

'Answer 'Yes' or 'No': Yes.

'II.

'Has a 'gravel plant' been established on the land sold by the complainant to the defendant, B. M. Scarbrough?

'Answer 'Yes' or 'No': No.

'If your answer to Issue No. I and II is 'no', it is not necessary to answer Issue No. III. If your answer to Issue No. I or II is 'Yes', you will answer Issue No. III.

'What damages, if any, have been sustained by the complainant by any breach of contract of the defendant, B. M. Scarbrough?

'Answer in dollars and cents or the use of the word 'None':

'$2,800 Twenty eight Hundred Dollars.'

Although the learned Chancellor denied a motion by defendant to include in Issue No. I submitted to the jury a finding that same was omitted from the contract of sale by reason of mutual mistake, which action of the Chancellor is assigned as error in this Court, nevertheless, the Chancellor held, as is stated in the recital part of the final decree, 'that by mutual mistake the contract between complainant, Mrs. Naytine J. Marron, and the defendant, B. M. Scarbrough, did not contain the real intention of the parties, in that it failed to contain the following provision:'--which is followed by quoting the language of Issue No. I, as found by the jury. Said final decree also provides in the recital part of same that 'said provision was the real intention of the parties, and which provision should have been carried forward in the deed executed and delivered to the defendant B. M. Scarbrough by the complainant'. Said decree, in its decretal part, adjudges that complainant recover the sum of $2,800, together with all costs of this cause, and that 'the verdict of the jury is...