Miles v. Miles

• Decision Date: 25 March 1901
• Citation: 78 Miss. 904,30 So. 2
• Court: Mississippi Supreme Court
• Parties: EDWARD H. MILES v. THEUS N. MILES ET AL

30 So. 2

78 Miss. 904

EDWARD H. MILES v. THEUS N. MILES ET AL

Supreme Court of Mississippi

March 25, 1901

FROM the chancery court of Holmes county. HON. ADAM M. BYRD Chancellor.

Edward H. Miles, appellant, was the complainant, and Theus N. Miles and others, appellees, were defendants in the court below. From a decree sustaining defendants' demurrer to the bill of complaint and dismissing the suit, the complainant appealed to the supreme court. The opinion states the facts.

Judgment reversed and demurrer overruled.

H. S Hooker, Jr., Noel $ Pepper, and Hooker, Wilson & Wiener, for appellant.

To summarize the salient points of complainant's case General Miles, the father, had agreed to give Omega plantation to his son, the complainant. Defendant, Theus, another son, desired to purchase this property from his brother, the complainant, and the complainant agreed to sell it to him for $10,000; thereupon the complainant executed the deed in controversy, and induced his father, General Miles, to make a deed directly to said defendant, investing him with the title. Complainant was the real vendor. The two deeds must be read together, and the deed executed by complainant expressly reserves a lien on the property to secure the purchase money.

1. It is said the statute of frauds is fatal to complainant's case. To this we answer by citing authorities showing that the statute has no application to the case made by the bill. 2 Jones on Liens, 39; Holloway v. Ellis, 25 Miss. 103; Marsh v. Lilse, 34 Miss. 179; Russell v. Watt, 41 Miss. 602; Gordon v. Manning, 44 Miss. 756; Campbell v. Henry, 45 Miss. 326; Perkins v. Gibson, 51 Miss. 699; McLain v. Thompson, 52 Miss. 418; Rutland v. Brister, 53 Miss. 684; Murphree v. Countiss, 58 Miss. 713; Louisiana, etc., Bank v. Knapp, 61 Miss. 486.

2. Coming now to the second contention of our adversaries in support of their demurrer, can we not show by parol evidence what the parties, the two sons and the father, meant by the descriptive terms used in the deed executed by the complainant? The authorities relied upon by adversary counsel announce a general rule which we do not deny, but we do contend that this case is not within that general rule. it must be borne in mind that the deed executed by the complainant is to be considered along with the deed executed by General Miles, the father, and with his will. All three papers must be treated as constituting one. George's Miss. Dig., 145, and authorities cited. So considered, most certainly the complainant is entitled to relief. He is, perhaps, entitled to enforce a lien not only on Omega, but also on the other plantation conveyed to defendant by the father's deed. But, if we look to the deed executed by complainant alone, there can be no trouble about the reception of parol evidence to show what property was conveyed. If there be any ambiguity in the description it is a latent one. The deed does not show on its face that the father was alive at the date of its execution. It is only when we learn aliunde that General Miles was then alive that any question arises. Parol evidence is admissible to show what land was conveyed. No effort is made to alter, amend, or modify the contractual part of the deed. Baum v. Lynn, 72 Miss. 932; Powell v. Thompson, 80 Ala. 51; Singer, etc., Co. v. Forsyth, 108 Pa. St., 334; Claflin v. Duncan, 74 Ga. 348; Lindley v. Lacey, 17 C. B. (N. S.), 578; Ayer v. Bell, 147 Mass. 46; Dunkin v. Cobleigh, 17 L.R.A. 273, S. C. 12 Am. & Eng. Enc. L. (2d ed.), 875; Stewart v. Cage, 59 Miss. 558; Patterson v. Snell, 67 Miss. 559; Buttrick v. Tilton, 141 Mass. 93; McGavie v. Deery, 41 Tenn. 265; Austin v. Dol-bee, 101 Mich. 292.

Tackett & Smith and C. H. Williams, for appellees.

The relation of vendor and vendee does not exist between appellant and appellees. If it did exist the lien was waived because (a) all of the grantees are purchasers direct from Gen. Miles, and only one of them is responsible for the payment of the notes sued on; and (b) because the notes sued upon were given for both real and personal property. That the relation of vendor and vendee does not exist is shown by the authorities. 5 Am. & Eng. Enc. L. (1st ed.), 431, note 1; Ib. (2d ed.), 1029; 2 Ib. (2d ed.), 238, note 4; Miller v. Tunica County, 67 Miss. 651; Metcalf v. Brandon, 58 Miss. 841; Miazza v. Yerger, 53 Miss. 135; 10 L.R.A. 401; code 1892, § 4230. The lien was waived. Campbell v. Henry, 45 Miss. 329; Griffin v. Byrd, 74 Miss. 32. The deed is void for uncertainty in description. Cocke v. Blackbourn, 58 Miss. 537; Ehrman v. Hoskins, 67 Miss. 192; Baum v. Lynn, 72 Miss. 932; Lumber Co. v. Lumber Co., 71 Miss. 944; Johnson v. Johnson, 74 Miss. 549; Coats v. Bacon, 77 Miss. 320; Thompson v. Bryant, 75 Miss. 12, S. C. 6 L.R.A. 33, S. C. 17 L.R.A. 270, and notes; Gumbel v. Koon, 59 Miss. 266; McGuire v. Stevens, 42 Miss. 731; Peters v. Tunell, 19 Am. St. Rept., 252; Jelks v. Barrett, 52 Miss. 315; Bowers v. Anderson, 52 Miss. 596; Kerr v. Calvit, Walker (Miss.), 115; Payson v. West, Ib., 515; Cocke v. Blackbourn, 58 Miss. 537; Callett v. Bacon, 33 Miss. 269; Cocke v. Bailey, 42 Miss. 81; Brown v. Guice, 46 Miss. 299.

Argued orally by E. F. Noel, for appellant, and by S. M. Smith, for appellees.

OPINION

CALHOON, J.

The bill and exhibits show that in 1897 Gen. William R. Miles, a man of large wealth, a very prominent citizen, and then quite old, having reached the age of about seventy-five years, was, and had been for a long time, married to a second wife, and had only two descendants, Edward H. Miles, the appellant, and Theus N. Miles, one of the appellees.

During the lifetime of the father, Theus was anxious to buy the interest of Edward in the father's estate, and it appears that the General was willing that negotiations to that end might be taken up. The first mention of this matter is in a letter from Theus to Edward, of date March 23, 1897, containing these words: "Did father have the talk with you about the property question? If so, at what conclusion did you and he arrive? Write and let me know." On May 29, 1897, he again writes: "You seem to think I only offered you $ 5,000 for your interest in the Mississippi patrimony. You are mistaken. I offered you $ 10,000. This latter amount is, of course, less than your interest in the estate would be. But, if you will remember, I suggested that, as you personally would have no use for money, and as money would be more serviceable to your order than land, I proposed that I would give you the $ 10,000, on obtaining possession of the property, the title to be passed as follows: A life interest to Alice and myself with remainder to our children. I could not for a moment, think of giving you only $ 5,000. That would be rank swindling. Now in a few days we go from here to Goodhope. I will take the matter up with father and will write you from there. I wish I had the $5,000 in cash on hand. I would most certainly advance it to you. Possibly I may have it before the twentieth of (next) month, and if I do get it you shall certainly gratify your wish about the chapel."

On June 19, 1897, he writes from Goodhope, his father's house "It is absolutely impossible to get just now so large an amount of money as $ 5,000. . . . Now, I will make you the following proposition: I will, on the 1st of January next, pay you $ 2,000, and thereafter on the 1st of January, 1899, 1900, 1901, and 1902, $ 2,000 each, the deferred payments to bear interest at six per centum per annum. You, in consideration of these payments, to sell to Alice and myself a life interest in your portion of father's estate, remainder over to our children, reserving a lien on the estate until all the payments shall have been made." On the basis marked out in these letters, Edward and Theus and their father met at Goodhope on July 1, 1897, and the following acts were done: Edward executed a conveyance of "my entire interest in the estate of W. R. Miles, my father, to Theus N. Miles and Alice Herrick Miles for and during their lives, with remainder over to the issue of their bodies. This contract embraces anything and everything that I would inherit at my father's death, be the same real estate, personal property, or ornaments, the payment to be made by Theus N. Miles," and the conveyance then recites the five promissory notes and provides, "I reserve a vendor's lieu upon the property sold for the payment," etc. On the same day the father executed a conveyance to Theus N. Miles and wife for life, remainder to their issue, of two plantations, known respectively as Quofaloma and Omega, beginning the conveyance with these words: "Whereas, my son, Edward H. Miles, has sold his interest in my estate to his brother, Theus N. Miles." Here the question at once arises, what was the interest of Edward in his father's estate, the sale of which is thus recognized by the father? We are left in no doubt about this,...