Poole v. McCarty

• Decision Date: 05 November 1956
• Docket Number: No. 40244,40244
• Citation: 90 So.2d 190,229 Miss. 170
• Parties: Leroy A. POOLE v. Emette E. McCARTY et al.
• Court: Mississippi Supreme Court

Page 190

90 So.2d 190

229 Miss. 170

Leroy A. POOLE v. Emette E. McCARTY et al.

No. 40244.

Supreme Court of Mississippi.

Nov. 5, 1956.

Hannah, Simrall & Aultman, Hattiesburg, for appellant.

McFarland & McFarland, Bay Springs, for appellees.

McGEHEE, Chief Justice.

This case is here on demurrer to a bill of complaint wherein the appellant Leroy A. Poole was the complainant and the appellee Emette E. McCarty and others were named as defendants. The demurrer was sustained, but the bill of complaint was not dismissed. The decree sustaining the demurrer allowed an appeal to this Court 'to settle the principles of law involved.'

The bill of complaint alleged that on December 7, 1954, the appellee Emette M. McCarty was the owner of the surface of something more than two hundred acres of land located in Smith County, Mississippi, which is particularly described in the bill of complaint.

It was further alleged that on the date aforesaid Emette E. McCarty had the right under the laws of the United States of America, Sections 1033 to 1039 inclusive, Title 7 U.S.C.A., to purchase from the Federal Farm Mortgage Corporation all of the interest in the oil, gas and minerals in and under said land then owned by the said Federal Farm Mortgage Corporation; that Emette E. McCarty entered into a written contract with the complainant Leroy A. Poole whereby it was agreed that Poole should purchase for and on behalf of McCarty the mineral interest owned by the said Federal Farm Mortgage Corporation, and pay to it the purchase price thereof, which was to be thereafter fixed by the said corporation, and that McCarty was to then convey to Poole 90% of the said mineral interest; that Poole performed his duties as required of him under said written contract; and that this resulted in the Federal Farm Mortgage Corporation making an offer during the month of May 1955 to the said McCarty to sell to him its mineral interest for the sum of $240,000.

The bill of complaint further alleges that as soon as the complainant Poole learned of the fact that such an offer had been made to McCarty by the Federal Farm Mortgage Corporation he, the said Poole, offered to pay the said sum of $240,000 for and on behalf of the said McCarty, but that the latter refused to carry out his part of the contract and refused to permit the complainant to pay the said sum of $240,000 to the Federal Farm Mortgage Corporation, but paid the same himself and then declined to execute the necessary conveyance to the complainant Poole for the 90% of the said mineral interest.

The bill of complaint also alleges that the complainant 'is ready, able and willing to pay the said sum of $240,000 to McCarty which the latter had paid to the Federal Farm Mortgage Corporation for the said mineral interest.'

A copy of the written contract entered into between Poole and McCarty on December 7, 1954, is made an exhibit to the bill of complaint. It recites the ownership of the land by McCarty, and that one-half of the oil, gas and mineral interest has theretofore been reserved by the Federal Land Bank or the Federal Farm Mortgage Corporation of New Orleans and that McCarty is desirous of employing Poole to recover said interest for him; that the party of the second part, Poole, 'will pay at his option, the amount necessary to purchase said undivided oil, gas and mineral interest for the first party on the lands above described and will handle all negotiations in the name and for the benefit of the said party of the first part; and that the party of the first part agrees to give and grant unto the second party an undivided 90% interest in the oil, gas and minerals that may be thus acquired.' Finally the contract provided that: 'It being understood and agreed that this option shall continue for a period of 90 days from and after this date, including any optional time which the First Parties may have to re-purchase said mineral interests from the present owner, and it being further understood that neither party shall be bound to exercise said option unless the price to be paid for the re-purchase of such oil, gas and mineral interest shall be agreeable to the Second Party, but in the...