Milam v. Paxton

• Decision Date: 12 May 1931
• Docket Number: 29265
• Court: Mississippi Supreme Court
• Parties: MILAM v. PAXTON et al

134 So. 171

160 Miss. 562

MILAM v. PAXTON et al

No. 29265

Supreme Court of Mississippi

May 12, 1931

Division B

1. FRAUDS, STATUTE OF

Part performance of oral contract for sale of land does not take case out of statute requiring such contracts to be in writing (Code 1930, section 3343).

2. SPECIFIC PERFORMANCE.

In absence of writing identifying land, stating purchase price and terms of payment, vendee under oral contract was not entitled to specific performance (Code 1930, section 3343).

3. VENDOR and PURCHASER.

Vendee under parol contract for sale of land may recover payments made where vendor refuses to complete transaction.

4. LIMITATION OF ACTIONS.

Statute of limitations begins to run against vendee's action to recover purchase money paid only from date vendor declines to execute agreement or takes affirmative action equivalent to repudiation of parol contract.

5. LIMITATION OF ACTIONS. Vendee's suit to recover money paid under oral contract of sale held governed by six-year limitation, in view of receipts (Code 1930, section 2292).

After parties entered into parol agreement to sell land, vendee paid installments on purchase price, for which vendor executed receipts to effect that payments were on account of purchase price of designated property. After first installment was paid, vendor by letter acknowledged receipt of part payment and promised to forward deed as soon as same could be conveniently prepared.

6 EQUITY.

Under general prayer, any relief will be granted which established main facts of bill justify and which does not operate to defendant's surprise or prejudice.

7 EQUITY.

Office of prayer for general relief is to enable court to grant relief which case warrants if complainant has mistaken special relief, or to grant appropriate relief, if specific relief cannot be had.

8. SPECIFIC PERFORMANCE. Under prayer for general relief in vendee's bill for specific performance of oral contract for sale of land, vendee held entitled to recover purchase money paid.

Vendee brought suit for specific performance of contract for sale of land, which rested in parol, but was not entitled to specific performance because contract was oral, notwithstanding part performance. Bill did not specifically pray for return of purchase money if specific performance could not be had, but contained prayer for general relief.

HON. J L. WILLIAMS, Chancellor.

APPEAL from chancery court of Sharkey county., HON. J. L. WILLIAMS Chancellor.

Suit by Mrs. M. A. Milam against W. G. Paxton and others. From a decree dismissing the bill, complainant appeals. Reversed, and cause remanded.

Reversed and remanded.

Brunini & Hirsch, of Vicksburg, for appellant.

Where a purchaser of property does not receive what he has bargained for, his right to recover back the purchase price as money paid on a consideration which has failed, accrues at the time when the failure of consideration occurs, and the statute then begins to run. Where the vendor of land receives the purchase money but fails to convey to the purchaser, it is held on the one hand that if no demand is necessary to perfect the purchaser's right to a deed his cause of action to recover back the purchase money accrues at the time the money is paid in full, and the statute then begins to run. On the other hand, it is held that if the contract contains no covenant to convey, and no time for executing the conveyance is fixed by the parties, the cause of action accrues and the statute begins to run only when the vendor does some act in disaffirmance of the contract so as to entitle the purchaser to rescind, or not until a demand for a deed is made.

Where payments are made by a purchaser under a parol contract for the sale of land, the money cannot be recovered back until the vendor is in default, that is, when he elects to disaffirm; and the statute of limitations begins to run only from that date. But when the vendor refuses to execute the contract, the statute begins to run.

37 C. J., page 857.

The statute of limitations began to run on the date when the cause of action accrued. As long as the contract of purchase was in force, the plaintiff could not maintain an action of this nature. Such an action will not lie until the contract has been terminated. But if the contract has been put an end to, the action for money had and received lies, to recover any payment that has been made under it. It follows, therefore, that the statute of limitations does not begin to run against an action for money had and received, when brought for the sole purpose of recovering back a payment made under a contract to purchase land, until the agreement has been rescinded or otherwise terminated.

Thiele v. Carey, 85 Neb. 454, 123 N.W. 442, 133 Am. St. Rep. 679; Elliott v. Walker, 140 S.W. 51; Taback v. Greenberg, 292 P. 279; Bedell v. Tracy, 26 A. 1031; Farmer v. Best, 224 N.W. 399.

Relief must be such as can be afforded on the facts stated, and it must appear that the defendant is fairly appraised by the bill that the relief is sought by the complainant.

Bell v. Clark, 14 So. 318.

Thames & Thames, of Vicksburg, and F. L. Wright, of Jackson, for appellees.

Every conveyance of land (and the same is true, of course, of a contract to convey) must define the identity and fix the locality of the land, and this might be done in two ways: First, by a complete description in the writing itself, pointing out directly the subject matter; or second, by reference to something aliunde the writing, pointing with certainty to the property intended to be conveyed; if reference is made to anything outside of the writing in aid of the description of the property, such reference must not be uncertain and doubtful.

Bowers v. Andrews, 52 Miss. 596; Holmes v. Evans, 48 Miss. 247, 12 Am. Rep. 373; McGuire v. Stevens, 42 Miss. 724, 2 Am. Rep. 649; Fisher v. Kun, 54 Miss. 480.

The acceptance of part of the purchase money does not give validity to a parol contract for the sale of land, nor estop the acceptor from refusing to carry out the contract.

Howie v. Swaggard, 142 Miss. 409, 107 So. 556.

The court will not usually permit a bill which is manifestly framed for one purpose, and which prays specially in accordance with that distinct and dominant purpose and theory, to be transmuted on the hearing to another and a different theory and purpose, to the surprise and prejudice of the defendant, even though if the bill in the first instance has been drawn, so as to present the other theory a somewhat similar set of proved facts might have supported it.

Griffith's Mississippi Chancery Practice, 690, section 613.

The specific relief prayed cannot be granted and unless under the prayer for general relief, a decree can be made in favor of the complainants, or some of them, the bill should have been dismissed. In modern practice the rule is more liberal, and under the general prayer any relief consistent with the bill, and within its scope, may be afforded though it be inconsistent with the relief prayed. But relief must yet be such as can be afforded on the facts stated and it must appear that the defendant is fairly apprised by the bill that the relief is sought by the complainant.

Bell v. Clark, 14 So. 318.

It is the general rule of equity pleadings that no relief can be granted except such as are warranted by the allegations of the bill.

U. S. Casualty Co. v. Malone, 126 Miss. 288, 88 So. 709.

Where the plaintiff inserts both a special and a general prayer, if the relief to which he is entitled is inconsistent with that specifically prayed, under the general prayer he may have such relief as is consistent with the complaint and the case made and with the relief specifically prayed. But relief which is entirely distinct from and repugnant to the special relief prayed cannot, it has been held, be granted under a general prayer.

16 Enc. Pl. & Pr. 804.

A court of equity will not permit a bill framed for one purpose to answer another, to the surprise or prejudice of a defendant; nor can special relief prayed for, and not objected to, be abandoned in favor of a different decree under the general prayer, though it seems that, if the bill shows a case for relief different from that specially prayed for, the complainant should be allowed to amend, and thus obtain what he is entitled to, but the amendment can only be allowed under these circumstances, not to make a different case.

Shipman on Equity Pleading, page 226; Fletchers Equity Pl. & Pr., section 77, p. 109; Puterbaugh's Chancery Pl. & Pr. (3 Ed.), pp. 58 and 59.

While under the general prayer any relief consistent with the bill and within its scope may be granted, it must be such as can be afforded on the facts stated, and it must appear that defendant is fairly apprised of the relief sought.

Weeks v. Thrasher, 52 Miss. 142; Bell v. Clark, 71 Miss. 603, 14 So. 318; Barkwell v. Swan, 69 Miss. 907, 14 So. 809; Hardy v. Gregg, 2 So. 359.

OPINION

Griffith, J.

In the year 1917 appellant and appellee W. G. Paxton had an oral agreement by which appellant was to purchase of said appellee the lands in Sharkey county, described in the bill. The purchase price agreed upon was three thousand dollars,...