Paine v. Newton

• Decision Date: 27 November 1939
• Docket Number: 33867
• Citation: 192 So. 310,186 Miss. 844
• Court: Mississippi Supreme Court
• Parties: PAINE v. NEWTON

192 So. 310

186 Miss. 844

PAINE v. NEWTON

No. 33867

Supreme Court of Mississippi, Division B

November 27, 1939

Suggestion Of Error Overruled January 8, 1940.

APPEAL from the chancery court of Hinds county HON. V. J. STRICKER Chancellor.

Suit by J. E. Newton against Mrs. Kathleen K. Paine for specific performance of a land contract. From two decrees in favor of the complainant, the defendant appeals. Reversed and rendered.

Reversed and decree for appellant.

Harold Cox, of Jackson, for appellant.

The final decree of the lower court is not supported by the bill of complaint and evidence.

There was no contract in this case signed by appellant or by any one authorized in writing to sign for her to sell any land.

Section 3343, Miss. Code 1930; Box v. Stanford, 13 S. & M 93.

There could be no suit for specific performance without tender of performance of appellee.

Morton v. Varnado, 90 So. 77, 127 Miss. 332; Shelton v. Usner, 110 So. 504, 144 Miss. 693; Phelps v. Dana, 83 So. 745, 121 Miss. 697; Griffith's Chan. Practice, Sec. 522 and Note 6.

In the case at bar, the appellant was privileged to demur, or not having answered, she cannot be prejudiced by a complaint which plainly states no cause of action. That the statute of frauds may be raised by demurrer in the Chancery Court is held in Fireman's Fund Insurance Company v. Williams, 154 So. 545, 170 Miss. 199.

Craft v. Lott, 40 So. 426, 87 Miss. 590.

The contract to comply with the statute of frauds must identify the parties, state specific terms of sale and description of property to be conveyed.

Frank v. Eltringham, 3 So. 655, 65 Miss. 281; 25 R. C. L. 655; McGuire v. Stevens, 42 Miss. 724; Queen v. Barnett, 89 So. 819, 127 Miss. 66; 25 R. C. L. 651.

No attorney's fees are allowable under the pleadings and proof in this case.

Cooper v. U.S. F. & G. Co., 188 So. 6; Marrs v. Germany, 100 So. 23, 135 Miss. 387.

The decree is subject to review by the court after the term under stated circumstances. Circumstances in this case authorized review of final decree.

Sections 472 and 2322, Code 1930; 54 C. J. 752-3 and 761; Bettman-Dunlap Co. v. Gertz, 116 So. 299, 149 Miss. 892; Enochs v. Harrelson, 57 Miss. 465; Knowland v. Sartorious, 46 Miss. 45; American Bank v. Johnson, 71 So. 808, 111 Miss. 516.

The appellee having failed to state a case is powerless to prove a case, and the court was powerless to give appellee relief to which he was not entitled under his pleadings.

Penn. Mut. Life Ins. Co. v. Keeton, 49 So. 736, 95 Miss. 708; Metcalfe v. Wise et al., 132 So. 102, 159 Miss. 54; Spears v. Cheatham, 44 Miss. 64.

The final decree is limited by sufficiency of pleadings to support it.

Griffith's Chancery Practice, Sections 30, 564, 567, and 612.

Appellant is guilty of no negligence in failing to make defense and is now entitled to review.

Robb v. Halsey, 11 S. & M. 140; Lucas v. Waul, 12 S. & M. 157; 34 C. J. 302, 313, 316.

Appellant is not prejudiced by failure to defend by pleading statute of frauds.

Metcalf v. Brandon, 58 Miss. 841; Singletary v. Ginn, 121 So. 820, 153 Miss. 700.

E. W. Stennett, of Jackson, for appellee.

The final decree is supported by the pleadings.

Griffith Chancery Practice, Sec. 635; Enochs v. Harrelson, 57 Miss. 465; Knowland v. Sartorious, 46 Miss. 45.

Appellant cannot now take advantage of statute of frauds.

Harvey v. Daniels, 133 Miss. 40, 96 So. 746; Metcalf v. Brandon, 58 Miss. 841; Singletary v. Ginn, 153 Miss. 700, 121 So. 820; 27 C. J. 371, Sec. 448.

No tender was necessary. In all the authorities cited by appellant on the proposition of a tender the vendee seeking to require specific performance was in default and owed the vendor either all or a part of the purchase price. In the case at bar the complaining vendee had done all that could be required of him.

The attorney's fee was properly allowed.

The decree is not subject to review.

Griffith's Chancery Practice, Sec. 635; Thomas v. Rosenberg, 153 Miss. 314, 125 So. 732.

No right to bill of review is shown. Appellant's petition is definitely a petition for authority to file a bill of review, and as such is not and cannot be based on errors of law apparent; neither is it based on newly discovered evidence. If it is based on anything it is based on an excuse for failure to appear, plead, and defend. As such, the petition is addressed to the sound discretion of the chancellor whose decision is not to be disturbed unless an abuse of discretion is shown.

54 C. J. 761, Sec. 35; 10 R. C. L. 568, Sec. 357; Yager v. North & South Alafia River Phosphate Co., 82 Fla. 38, 89 So. 340; Bowen v. Bernard, (CCA 1st) 86 F.2d 276; Hirons v. Hubbell (Md.), 142 A. 380; Grier Bros. Co. v. Baldwin (CCA 3rd), 265 F. 481; National Brake & Electric Co. v. Christenses, 278 F. 490; Hagerott v. Adams, 61 F.2d 35; Scotten v. Littlefield, 255 U.S. 407; 59 L.Ed. 289; Griffith's Chancery Practice, Sec. 635.

It is well settled that a bill will not be allowed to review a consent decree. By analogy this has been expanded to cover decrees pro confesso, and judgments by default.

Weldon v. Callison (W.Va.), 193 S.E. 441; Hyde Park Sav. Bank v. Davankoskas, (Mass.), 11 N. E. (2d) 3.

OPINION

McGowen, J.

The appellant prosecutes within time and appeals from two decrees against her in the Chancery Court, and in favor of appellee, J. E. Newton.

The procedure in the lower court was practically the same as depicted in the case of Paine v. Mikell, Miss., 187 Miss. 125, 192 So. 15, decided by Division B on the 13th day of November, 1939.

It is asserted by appellee that the two cases are controlled by the same principles of law, but we are of opinion that the factual situation renders it necessary for us to state the case.

We consider the case here on the direct appeal from the default decree rendered on the bill decree pro confesso and proof, and omit all reference to the decree on petition to file a bill of review.

The bill alleged a contract for sale of land entered into between Newton and appellant, Mrs. Paine, a breach thereof by her and effort to comply with his contract refusal by appellant to deliver to him a deed to the lands sought specific performance of the contract, or, in the alternative, damages for the breach thereof, with attorney's fees.

The other material allegations of the bill are as follows:

"That the defendant Mrs. Kathleen K. Paine is the owner of certain lots located in Pine Acres, a subdivision, located near the City of Jackson, in the First Judicial District of Hinds County, Mississippi, a map or plat of which is on file and of record in the office of the Chancery Clerk, in Jackson, Mississippi, reference to which plat is hereby made.

"That some time during the year 1937, or prior thereto, the defendant owner of said lots, engaged the services of one Willis Brown, a real estate dealer, to dispose of and sell certain of said lots, making said Brown her agent in said respects. That on or about the 19th day of January, 1937, the said Willis Brown, agent of said defendants, and acting for and on behalf of his principal, entered into a contract with the complainant for the sale to complainant of certain of said property described as Lot 62, of Block B, of said Pine Acres, and that part of Lot 45 of said subdivision lying between the boundary lines of said Lot 62 extended in a straight line across said Lot 45. That said property was bought at and for the sum of $ 1, 400.00; of which the sum of $ 100.00 was a cash down payment, and the remainder represented by 30 promissory notes in the sum of $ 15.00 each, payable monthly; and one note in the sum of $ 850.00 due in three years; and interest notes on the said $ 850.00 note calculated at the rate of six per cent and payable semi-annually. That a note or memorandum of said sale was made at said time; a copy of which is hereto attached, made a part hereof, and identified as exhibit 'A.' That said contract was later ratified by both defendants."

Exhibit "A" was not attached to the bill, neither do the above allegations purport to set forth the contents of the written contract alleged to have been executed by Brown,...