Mathieu v. Beck, 44856

• Decision Date: 15 April 1968
• Docket Number: No. 44856,44856
• Parties: Mae MATHIEU and Odette Kuhn v. Sidney F. BECK, Jr.
• Court: Mississippi Supreme Court

Page 627

209 So.2d 627

Mae MATHIEU and Odette Kuhn v. Sidney F. BECK, Jr.

No. 44856.

Supreme Court of Mississippi.

April 15, 1968.

Amy Burkett, Ocean Springs, for appellants.

Cumbest, Cumbest, O'Barr & Shaddock, Pascagoula, for appellee.

GILLESPIE, Presiding Justice:

Sidney F. Beck, Jr., filed a bill in the Equity Division of the County Court of Jackson County to recover on the warranty of a deed because of failure of title to real property. The county court gave Beck a judgment against the defendants, Mrs. Mae Mathieu and Mrs. Odette Kuhn, and they appealed to circuit court where the judgment was affirmed. The defendants appealed to this Court.

The essential facts are stated in the light most favorable to the appellee, Beck, for whom the trial court found. This means, in general, that wherever there is a conflict in the evidence we adopt the version most favorable to the appellee. We make this statement at the outset because some of the arguments are based on the appellant's version of the facts which we must consider as having been rejected by the trier of fact, the county judge.

Beck, the complainant below and appellee here, will be called Beck or complainant, and Mesdames Mathieu and Kuhn, defendants below and appellants here will be called defendants. On March 5, 1964, defendants executed and delivered to Beck a warranty deed describing about two and a half acres of land in Jackson County, Mississippi, for a cash consideration of $3,000. The purchase price was paid by Mrs. Mary Daggett, for whom Beck had negotiated in buying the property. The defendants did not know Mrs. Daggett's identity, but Beck told them he was buying the property for some person other than himself. Immediately after the defendants executed and delivered the deed to Beck he deeded the property to Mrs. Daggett. Some time later Mrs. Daggett and Beck learned that J. S. Delmas claimed the land. The Jackson County Port Authority desired to acquire the property but would not buy it because of Delmas' claim. Beck told defendants that he would have to confirm the title and he thereafter filed a confirmation suit on behalf of Mrs. Daggett. Defendants were notified by Beck when the trial would be held and requested them to testify. Before and during the trial Beck told defendants what would happen in the event of a decree adverse to Mrs. Daggett in which event he would have to call on defendants to make good their warranty. Mrs. Mathieu testified in the confirmation trial. Mrs. Kuhn did not because she said she did not know any of the facts. The trial resulted in a decree adjudging Delmas the owner of the land because of adverse possession. Beck then gave Mrs. Daggett a note for the $3,000 purchase price on his warranty to her and called upon defendants on their warranty. They refused to pay and this suit was brought.

Defendants contend that Beck is estopped to claim damages under the warranty because (1) he examined the abstract furnished him by defendants and because he is an attorney knew defendants had no title but told defendants the title was good and acceptable, (2) Beck therefore had knowledge of the facts, (3) defendants are not lawyers, and (4) defendants acted upon Beck's advice that the title was good. Defendants also say that they paid Beck a fee of $150 to examine the title and they so testified. Beck said, however, and we must assume the trial court found, that the sum paid him was a commission and that he was not the defendant's attorney. We find no merit in the argument that Beck is estopped. According to Beck's testimony, the record title was good but the title failed because of adverse possession of Delmas. Some argument is made that the description in the deed was erroneous, but we fail to see how this could affect liability under the warranty. Defendants do not contend that they had good title to some land other than that described in the deed, and there is no contention that the land defendants showed Beck before the sale was not the land involved in the litigation between Mrs. Daggett and Delmas. Beck testified, as stated, that the record title to the land was good and that the sole cause of the failure of Mrs. Daggett's title was adverse possession by...