Money v. Peavy

• Decision Date: 19 December 1892
• Citation: 70 Miss. 260,12 So. 334
• Court: Mississippi Supreme Court
• Parties: P. MONEY v. C. R. PEAVY ET AL

12 So. 334

70 Miss. 260

P. MONEY v. C. R. PEAVY ET AL

Supreme Court of Mississippi

December 19, 1892

FROM the circuit court of the first district of Carroll county HON. C. H. CAMPBELL, Judge.

This is an action by P. Money to recover of C. R. Peavy and others damages for breach of an alleged contract to build a partition wall. The declaration alleges that plaintiff conveyed to defendants a certain lot in the town of Carrollton, and, in exchange therefor, defendant, C. R Peavy, executed to him a deed reciting a cash consideration of $ 600, and containing this further clause: "And we also agree, as a part of this deed, that the said Pierson Money, and the subsequent owners of the lot herein conveyed shall have the right and privilege of uniting with and using the south wall which may be erected by us on the south boundary of our part of lot No. 9, situated in the town of Carrollton;" that it was the agreement between plaintiff and defendants, at the time the deed was executed, that the latter should erect said wall, and, but for such agreement plaintiff would not have executed his deed; that the privilege of uniting to said wall was a part of the agreed consideration, and was and is of the value of $ 400; that defendants have refused to erect it, to plaintiff's damage, etc.

Defendants demurred to the declaration, mainly upon the ground that the deed did not import a contract to erect the wall. Demurrer sustained, and plaintiff, declining to amend, prosecutes this appeal.

Section 979, code 1880, is as follows: "Any agreement for erecting walls which parties may make who own adjoining lots, and desire to build partition walls, shall be binding, whether in writing or not; and, in case of failure of either party to comply with his contract, the other may have his appropriate action for damages."

Affirmed.

A. H Somerville and W. R. Harper, for appellant.

The declaration is not intended as an action of covenant on the deed, but to recover the consideration which, it is alleged, rested in parol. The clause in a deed reciting payment of the consideration only estops the grantor from denying that there was a consideration. For every other purpose it is open to explanation, and the real consideration may be shown by parol. Devlin on Deeds, § 823. The deed may be evidence tending to show what the consideration was, but it does not purport to state all the consideration.

Southworth & Stevens, for app...