Moore v. Moore

• Citation: 105 So. 850,141 Miss. 795
• Decision Date: 19 October 1925
• Docket Number: 25103
• Court: United States State Supreme Court of Mississippi
• Parties: MOORE v. MOORE. [*]

105 So. 850

141 Miss. 795

MOORE v. MOORE. ^[*]

No. 25103

Supreme Court of Mississippi

October 19, 1925

Division B

Suggestion Of Error Overruled November 30, 1925.

APPEAL from chancery court of Choctaw county, HON. T. P. GUYTON Chancellor.

Suit by Dr. J. S. Moore against Dr. C. A. Moore administrator. Decree for plaintiff, and defendant appeals. Affirmed.

See also, 101 So. 715.

affirmed.

A. M. Pepper, and J. A. Teat, for appellant.

It is the contention of the complainant that this written order should be reformed so as to make it a part of the deed and state the above-proposed agreement. But it appears that after the parties had made their agreements, and had chosen their written instruments by which they would perpetuate their agreements, duly executed and delivered, and went their way, no mention was made by either the aged blind man or his nephew, Dr. J. S. Moore, of the oral contemporaneous agreement so relied upon for recovery.

We call the attention of the court to the subject of "extrinsic evidence" to affect writings, as laid down in 10 R. C. L. 1016. Likewise see, as directly in point, Wren v. Hoffman, 41 Miss. 616. Also Houck v. Wright, 23 So. 422; Chicago Bldg. & Mfg. Co. v. Higginbotham, 29 So. 79; Cooper v. Robertson, 77 So. 953; O'Keefe v. McLemore, 87 So. 655, 125 Miss. 394.

We call the court's especial attention to the fact that the right of this complainant is based upon his agreement to return two levee bonds. This contention is exactly the same thing as to reserve the rent. As the court will see, it is the contention of Dr. J. S. Moore, complainant, that he was to reserve the title to the two bonds, or to reserve the right to the possession of the two bonds at a certain future event, to-wit--at the death of John L. Moore.

The case of O'Keefe v. McLemore is, therefore, precisely in point. The reservation of rents should have been stipulated in the deed to have availed, the grantor of such benefit. Likewise Dr. J. S. Moore should have stipulated the return of the bonds to have availed himself of the benefit desired. The court cannot now make a contract for him that he did not make for himself. He was conclusively bound by the terms of the written instrument. See, also, Porter v. Peacock, 91 So 856; Bettman-Dunlap Company v. Gertz Bros., 99 So 384.

In support of the decisions of the state of Mississippi, we cite the following cases: United States--Burke v. Dulaney (1893), 153 U.S. 228, 38 L.Ed. 698, 14 S.Ct. 816; Alabama--Corbin v. Sistrunk (1851), 19 Ala. 203; Arkansas--Graham v. Remmel (1905), 76 Ark. 140; Connecticut--Burns & S. Lumber Co. v. Doyle (1899) 71 Conn. 742; Indian Territory--Mehlin v. Mutual Reserve Fund Life Asso. (1898), 2 Ind. Terr. 396, 51 S.W. 1063; Maine--Goddard v. Cutts (1834), 11 Me. 440; Massachusetts--Watkins v. Bowers (1875), 119 Mass. 383; Michigan--Central Sav. Bank v. O'Conner, (1903), 132 Mich. 578; Minnesota--Smith v. Mussetter (1894), 58 Minn. 1597 59 N.W. 995; New York--Seymour v. Cowing (1864), 4 Abb. App. Dec. 200, 1 Keyes, 532; North Carolina--Hughes v. Crooker (1908), 148 N.C. 318; Oklahoma--Gamble v. Riley (1913), 39 Okla. 363, 135 P. 390; Oregon--Le Grande National Bank v. Blum (1894), 26 Or. 49, 37 P. 48; Texas--Holt v. Gordon (1915),-- Tex. Civ. App.--176 S.W. 902; Washington--Ewell v. Turney (1905), 39 Wash. 615.

We, therefore, submit that the complainant did not make out his case, and did not show any right whatever to recover.

II. The evidence shows conclusively that the two bonds in question were given by John L. Moore to Mrs. Sara Parker, and that the title of Mrs. Parker had passed by virtue of the agreement to the heirs of John L. Moore. The action of the complainant, therefore, to recover these identical bonds, cannot succeed. His rights, if any, were to recover a judgment against the administrator for the value of the bonds. The written instrument pleaded by the defendant, whereby the heirs of John L. Moore, including Dr. J. S. Moore, secured from Mrs. Sara Parker the bonds in question, has forever estopped the complainant from the recovery of these bonds.

Under the record in this case it is manifest that the complainant is forever estopped from reaping the benefit of the agreement by recovering the two bonds in question. 10 R. C. L. 693; 21 C. J. 1206, secs. 207 and 1207, sec. 208; White v. Jenkins, 33 So. 287 (not officially reported); Meyer-Bridges Co. v. Badeau, 90 Miss. 27, 43 So. 609.

III. We are aware of the contention that the complainant could make that the demand sued on was not such a debt as existed against the decedent in his life time. But this contention cannot be successfully asserted here because the only possession which the administrator has of the bonds in question arises out of the contract executed by Mrs. Sara Parker and the heirs of John L. Moore. John L. Moore, in his lifetime, had given these bonds to Mrs. Sara Parker, and at that time if the complainant had any claim against the estate, it was such a demand gainst John L. Moore for the value thereof. 24 C. J. 323, sec. 943.

IV. The complainant in this case did not offer to do equity; did not offer to return the money that had been paid to Mrs. Parker for the bonds; did not offer to reimburse his brothers and sisters who had co-jointly entered into the written contract with Mrs. Parker, by which the bonds were delivered to the administrator.

Manifestly this complainant is not entitled to recover when equity and good conscience would forbid him so to do, at the great loss and detriment of his brothers and sisters, who have in good faith paid out their money to secure the possession of the said bonds, and who are now obligated to pay out their money for and during the natural life of the said Mrs. Sara Parker, and at the same time the bonds to go to the full use and benefit, right and title, of the complainant, who has not undertaken to share any part of the burden, or relieve the brothers and sisters of future liability under said written contract.

J. D. Guyton, for appellee.

The complainant is not here seeking to reform the deed to the seven hundred acres of land; nor is he seeking reformation of the order of J. L. Moore or his administrator for the two bonds in question. The deed is a mere incident; the order for the bonds is an evidence of complainant's title and right to possession. The complainant is here seeking to recover from the appellee administrator certain specific property upon the ground that the complainant has title to this specific property and the right to immediate possession thereof. This suit is merely a replevin suit in chancery, plus an accounting for such coupons as the administrator has cashed and converted into money.

Counsel for appellant devotes much space to a proposition of the law of evidence which we do not at all controvert. It is axiomatic that evidence cannot be received of a previous or contemporaneous parol agreement which has been reduced to a written contract, and which varies or contradicts the terms of the written instrument. The testimony of the witness Hays does not violate this rule in the least. In the first place, complainant does not claim the right to the bonds by virtue of the deed to the land; this deed furnishes him no muniment of title thereto. Nor does he claim said bonds by virtue of the order to his administrator for them; this order to him is a bare muniment of title thereto. The title to the bonds in question was always in J. S. Moore in fee simple; by this real estate deal his fee-simple title was subjected to a life estate then transferred to J. L. Moore at the termination of which the full title and right of possession reverted to J. S. Moore. The testimony of Hays is to show how, in what manner, and by what right J. L. Moore came into the possession of said bonds, and the extent of his right and title thus acquired in the real estate transaction. The order on the administrator for the bonds is corroborative of the direct positive testimony of Hays showing the title to J. S. Moore to them, and his right to their immediate possession.

In the second place, the testimony of Hays does not vary or contradict the "terms" of the deed. It will be noted that the deed recites a consideration of "two thousand dollars, cash in hand paid, the receipt of which is hereby acknowledged." The testimony of Hays is to the effect that the recited consideration in the deed is and was not the true consideration paid; that the true consideration for the deed, or the land it conveys, was and is a note for two thousand five hundred dollars, and a life estate in the two bonds in litigation. This testimony does not vary or contradict the "terms" of the deed. Jones on Evidence, Civil Cases (3 Ed.), sec. 469, quoting Goodspeed v. Fuller, 46 Me. 147, 71 Am. Dec. 576, and note; Fowlkes v. Lea, 84 Miss. 509, 36 So. 1036; 22 C. J., Evidence, sec. 1555.

Numerous authorities are cited in Corpus Juris, including Campbell v. Davis, 94 Miss. 164, 47 So. 546; 19 Ann. Cas. 239; Thompson v. Bryant, 75 Miss. 12, 21 So. 655; Baum v. Lynn, 72 Miss. 932, 18 So. 428, 30 L. R. A. 441. 22 C. J. Evidence, sec. 1557, gives the rule as to deeds.

The testimony of the witness Hays, showing the consideration of this deed to be different from that expressed in the deed creates no new right, and extinguishes none; it shows other and consistent consideration; it in no way effects in any manner the covenants of the grantor or the grantee therein; it neither enlarges nor limits the grant in the deed; it merely shows just exactly what caused appellee to purchase the land, what induced him to buy the land; it does not vary or contradict the deed, but consists with it. Upon both authority and reason it is plain that the trial court was not in...