Rankin v. Ford

• Decision Date: 12 May 1931
• Docket Number: 29444
• Citation: 134 So. 178,160 Miss. 802
• Court: Mississippi Supreme Court
• Parties: RANKIN et al. v. FORD

134 So. 178

160 Miss. 802

RANKIN et al. v. FORD

No. 29444

Supreme Court of Mississippi

May 12, 1931

Division B

APPEAL from chancery court of Marion county, HON. T. P. DALE Chancellor.

Suit by Ernest R. Ford against Mary Calvin Rankin and others. Decree for the complainant, and certain of the defendants appeal. Reversed, and a decree rendered.

Reversed and decree here.

Ford & McGehee, of Columbia, for appellants.

A defendant in a bill in equity which states no cause of action, who answers such bill without testing its legal sufficiency by demurrer, may nevertheless, on appeal, for the first time raise the question of its legal sufficiency.

Pease &amp Dwyer Company v. Somers Planting Company, 130 Miss. 147, 93 So. 673.

No lien arose against the timber by reason of the alleged breach of the option to purchase.

Liens can exist only by contracts either expressed or implied, or by the operation of some positive rule of law, such as by statute. The only lien existing at common law arose out of the right to retain the possession of personal property until some debt due on, or secured by, such property is paid or satisfied.

37 C. J., 312.

In the case of National Cash Register Company v. Hude, 119 Miss. 36, 80 So. 378, 7 A. L. R. 990, wherein there was an adjudicated breach of the contract involving the sale of a cash register, the purchaser in whose favor the adjudication was made, was denied the right to enforce a lien against the cash register for the amounts paid by him on the purchase price thereof.

Courts of equity have repeatedly refused to declare a lien upon real estate on the ground that the person seeking the lien advanced funds on the purchase price at the instance of the buyer, and especially so in the absence of an express agreement on the part of the purchaser to give a lien in favor of the lender of the money and as an inducement thereto.

Under all the authorities an option conveys no title to property, and does not even constitute an agreement to convey property, but merely conveys the right to the proposed purchaser to elect at his option to purchase the same.

27 R. C. L., page 334.

We know of no rule of law which holds that the right to elect to purchase land or timber conveys with it the right to impress a lien against the property for damages that may result from the breach of offer to sell and where no claim is made that a debt is due against the property for money paid on the purchase price thereof, or on a transaction in connection therewith.

Hart et al. v. Livermore Foundry & Machine Company, 72 Miss. 809, 17 So. 769; Strong v. Krebs et al., 63 Miss. 338.

There existed between the parties in the case at bar no fiduciary relation or other relationship that would give rise to a trust or lien against the timber involved in the alleged option; and in fact, there was no ground of equitable jurisdiction involved in the case, the claim being one merely for damages for an alleged breach of contract, which were recoverable in a common-law action. However, inasmuch as the chancery court exercised jurisdiction and tried the case, we are not unmindful of the fact that no error can be predicated thereon in this court. But we respectfully submit that there was no power or authority in law or in equity for the action of the court below in seeking to impress a lien against the timber in question, and to order it sold for the satisfaction of the demand of the appellees.

The court below was without authority to decree a lien in favor of the appellee on the timber involved, since no lien arose by the alleged contract, either expressed or implied, or by operation of law. Counsel for the appellee undertake to answer this contention by citing section 407 of the Code of 1930, which gives the chancery court jurisdiction of bills exhibited by creditors who have not obtained judgments at law, to set aside fraudulent conveyances of property, etc.; and to subject the property to the satisfaction of the demands of such creditors as if they had obtained judgments at law and execution had been returned "no property found." But we respectfully submit that the bill of complaint in this cause does not seek the cancellation of an alleged fraudulent conveyance, but that the appellee elected to sue for damages for an alleged breach of contract between himself and the appellants and the court below did not decree the setting aside of any fraudulent conveyances in order that the alleged contract might be specifically performed, but granted the appellee a decree awarding him damages for the alleged breach of the option sued on as prayed for in the bill of complaint. The above statute referred to has no application in the case at bar.

T. B. Davis and Hall & Hall, all of Columbia, for appellee.

The option in this case is not void for want of mutuality. Mutuality is not necessary where the option is supported by a valid consideration.

27 R. C. L., pages 334-335; 13 C. J., page 336.

The option was supported by a valid consideration and is not void for insufficiency of consideration.

Byrne v. Cummings, 41 Miss. 196; Ross et al. v. Parks, 8 So. 368; Marsh v. Lott, 97 P. 163; Adams v. Peabody Coal Co., 82 N.E. 645; Seyferth v. Groves, etc., 75 N.E. 522; George v. Schuman, 168 N.W. 486; Land Co. v. Beeman, 178 N.W. 696; Guyer v. Warren, 51 N.E. 580.

It is immaterial that the consideration for the option was to be applied on the purchase price in the event of sale under the option.

Kingsley v. Kressly, Ann. Cas. 1913E, 746; Ide v. Leiser, 24 A. S. R. 19.

Appellee was entitled to a lien on the timber to satisfy his claim for damages for breach of the option.

Section 407, Code of 1930; Griffith's Chancery Prac., section 500; Ins. Co. v. Ligon, 59 Miss. 316; Grenada Bank v. Waring, 99 So. 684.

In view of the fact that the bill of complaint alleged that the deed to John and Ira Calvin was fraudulent conveyance and further asked for damages for breach of the option, and further asked that a lien be impressed upon the timber in question to satisfy the claim for damages, we submit that this case comes squarely within the provisions of the Mississippi statute, and that the chancellor committed no error in impressing a lien upon the timber to satisfy the decree.

Argued orally by Harvey McGehee for appellant.

OPINION

Griffith, J.

Appellee filed his bill in the chancery court of Marion county, and alleged that on August 19, 1920, appellant Mary Calvin Rankin was the owner of the merchantable timber on certain lands described in the bill; that on the date aforesaid for a valuable consideration then paid by appellee to said appellant Mary Calvin Rankin, she contracted in writing signed and acknowledged by her, to convey said merchantable timber to appellee at any time within thirty days from said date upon tender by him of payment therefor in cash at the rate of three dollars per thousand feet as per an estimate thereof to be made by a competent estimator. That such an estimate was made, and it having been found that there was one hundred thousand feet of said timber, appellee within said thirty days tendered to said appellant the sum of three hundred dollars in cash and demanded a deed, which appell...