Riley v. Norfleet

• Decision Date: 12 June 1933
• Docket Number: 29714
• Citation: 148 So. 777,167 Miss. 420
• Court: Mississippi Supreme Court
• Parties: RILEY v. NORFLEET et al

148 So. 777

167 Miss. 420

RILEY v. NORFLEET et al

No. 29714

Supreme Court of Mississippi

June 12, 1933

Division A

1 REMAINDERS.

Equity court, on plenary bill with adversary interest properly represented, may sell contingent remainders in land under some circumstances, though remaindermen are not ascertained or in being.

2 REMAINDERS.

Equity court cannot authorize sale of interest of possible remaindermen not before court in ex parte proceeding by guardian on behalf of particular remaindermen, and deed tendered by such guardian under authority of decree therein does not convey title which purchaser of fee-simple title must accept.

3. VENDOR AND PURCHASER.

Remaindermen's offer, after attaining their majority or having disabilities of minority removed to join in their guardian's conveyance of their interest under authority of decree in guardian's ex parte proceeding, wherein other possible remaindermen were not before court, added no strength to title conveyed.

4. VENDOR AND PURCHASER.

Failure of deed, tendered to purchaser of land, to convey reversionary interests of others than grantee, constituted material defect in title, which was not cured by such reversioners' contract with grantee to purchase interest in contract.

5. VENDOR AND PURCHASER.

Title which can be perfected only by compliance of others than parties to sale contract with contract to purchase interest therein from vendee, is not fee-simple title which vendee can be required to accept.

HON. R E. JACKSON, Chancellor.

APPEAL from the chancery court of Tunica county HON. R. E. JACKSON, Chancellor.

Suit by Mrs. Ada Norfleet Riley, for herself and as guardian and next friend of her two minor children, against J. P. Norfleet and others. From a decree sustaining demurrers to an amended bill, plaintiff appeals. Affirmed.

Affirmed.

Watkins, Asbill & Watkins, of Atlanta, Ga., Sillers & Roberts, of Rosedale, and Green, Green & Jackson, of Jackson, for appellant.

Trust instrument involved, being family compromise, permits and makes valid contract settlement, entitling appellant to specific performance thereof.

Smith v. Smith, 36 Ga. 184; 3 Burge Com. 742; Pickering v. Pickering, 2 Beavan 56; Naylor v. Winch, 1 Simons & Stuart 565; Batton on Contracts, p. 70; Westby v. Westby, 2 Drury & Warren 503.

The trust agreement involved authorizes relief prayed.

Shannon v. Riley, 121 So. 808, 153 Miss. 815; McNeill v. Lee, 79 Miss. 455, 30 So. 821.

Under the instruments executed the appellants are vested with entire fee requisite for conveyance, under contract.

Shannon v. Riley, 121 So. 808, 153 Miss. 815; Knotts v. Stearns, 91 U.S. 638, 23 L.Ed. 252; Ridley v. Holliday, 106 Tenn. 607, 61 S.W. 1025, 53 L. R. A. 477; Kelly v. Neville, 136 Miss. 429, 101 So. 565; Crawford v. Solomon, 131 Miss. 792, 95 So. 686; McCreary v. Billing, 176 Ala. 314, 58 So. 311; Hamilton v. Jackson, 127 So. 302, 157 Miss. 284; Section 2762, Code of 1906; Williams v. Green, 91 So. 39, 128 Miss. 448; Harris v. McLaran, 30 Miss. 533, 568; Fearne on Remainders, 49, 50, 51, 52, 67; 1 Preston on Estates, 290, 291; Godolphin v. Abbingdon, 2 Atkins 56; Cholmondely v. Maxey, 12 East 589; 1 Hill, Ab. 199, sec. 28; Sec. 31; 419, sec. 8; 1 Tucker, Com. 135, 138, 139, 140; Morgan v. Hazlehurst Lodge, 53 Miss. 674; 23 R. C. L. 1100, sec. 3; 2 Minor's Inst. 399; Pybus v. Mitford, 1 Mod. 120, 122; 2 Thomas, Coke, 116 note; Watk. Descent, 121, 168, 259, 280; Watk. Convey., 60, 120, 121; Banking Co. v. Field, 84 Miss. 646, 37 So. 139; Lemon v. Rogge, 11 So. 470; Marx v. Hale, 95 So. 441, 131 Miss. 290; Halsey v. Gee, 79 Miss. 193, 30 So. 604; Cholmondeley v. Clinton, 2 Jacob & Walker 81.

Any estate vested under the deed, Exhibit "A" in the interest of Mrs. Riley in the children of Cecil M. Norfleet, et al., as purchasers, would be violative of the two-donee statute.

Norfleet v. Norfleet, 119 So. 306, 151 Miss. 790; Smith v. Muse, 134 Miss. 827, 98 So. 436; Scott v. Turner, 137 Miss. 636, 102 So. 467; Lazard v. Hiller, 110 So. 855, 145 Miss. 449; Bratton v. Graham, 111 So. 353, 146 Miss. 246.

Said limitation to the children of Mrs. Cronkrite, et al., would be void as in excess of the two-donee statute for a further reason, namely, they were not within the class of heirs of the donor.

Cholmondeley v. Chilton, 2 Jacob & Walker 81.

Equity may enforce the specific performance of a contract for the sale of lands, although the vendor may have had no title at the time of the sale, or even at the time of the filing of the bill, if he can make a good title at the time of the decree.

25 R. C. L. 49.

In this case the grantor and all persons interested are now parties to the suit for specific performance, so that the claim may be settled by the decree herein and the objection cannot be raised that the title exposes the vendee to litigation.

36 Cyc. 633; National Finance Corporation v. Robinson, 237 S.W. 418.

That here under discussion is, may this demurrer strike down this right of performance, where the sole alleged defect consists in an interpretation of an instrument when all parties who may be interested are present personally or by representation. The court below as a court of equity, has plenary power thus to adjudge; by section 159, in all matters of minor's business equity has full jurisdiction, and in this case it may enter a decree, with the consent of the adult appellant, vouchsafing to the minors under the protection of the chancery court, the full amount of this estate, where, as here, the only parties who may object to the decree are before the court, the judgment will be binding upon them, and they will not be at liberty thereafter to assert that the title is doubtful. All parties alleged to be interested are either personally present or constructively present, as will be later found, and when bound by decree, the title is not doubtful, such defense is not available.

Fry's Specific Performance (5th Canadian Ed.), sec. 881; National Finance Corp. v. Robinson, 237 S.W. 418, 421; Early v. Douglass, 62 S.W. 860; Chesman v. Cummings, 7 N.E. 17.

But counsel contend that these grandchildren of Mrs. Cronkrite and others are necessary parties to the conversion decree rendered in the chancery court of Tunica county. Under the constitution chancery courts have full power to convert this realty, wherein these estates are, into personalty, and so converting, bind each of these persons.

Hale v. Hale, 20 L. R. A. 247; 21 C. J. 963, notes 84 to 88; Reed v. Alabama & G. Iron Co., 107 F. 586; Richards v. Railway Co., 106 Ga. 614, 33 S.E. 193, 45 L. R. A. 712; Knott v. Stearns, 91 U.S. 638, 23 L.Ed. 252; Ridley v. Halliday, 106 Tenn. 607, 61 S.W. 1025, 82 A. S. R. 902, 53 L. R. A. 477; Bofil. v. Fisher, 24 S. C. Eq. 1, 55 Am. Dec. 627; Gavin v. Curtin, 171 Ill. 640, 49 N.E. 523, 40 L. R. A. 776; Graff v. Rankin, 250 F. 150, 247 U.S. 510; Rousseau v. Paige, 150 Ky. 812, 150 S.E. 983.

Appellees' claim of heirship is rebutted by deed of ancestor. Should we assume that Mrs. Riley executed this deed as drawn, wherein this warranty is contained, and that the two children, James M. Riley, Jr., and Octavia Riley, survive their mother, and pursuant to the offer made in the brief herein, the entire one hundred twenty thousand dollars is kept intact in chancery until that event occurs, then when this is done the law is that the claims of a warrantor cannot in general be asserted in opposition to his own warranty, and the claim of his heir at common law will be repelled by the warranty of the ancestor, whether the warranty be collateral or lineal, and whether the heir actually derived any heritage from the warranting ancestor or not.

2 Minor's Inst., 709; Nixon v. Carco, 28 Miss. 426; Challis' Real Property (3 Ed.), 76; Finkbine Lumber Co. v. Saucier, 150 Miss. 446; Farnsworth v. Kimball et al., 91 A. 954; Justice v. May, 195 S.W. 98; McClure v. Deed, 88 N.W. 1093; Rawls on Covenants for Title (5 Ed.), chap. 11, sec. 238; Kaiser v. Earhart, 64 Miss. 492, 1 So. 635; FitzGerald v. Allen, 126 Miss. 678, 89 So. 146; Smith v. Salmen Brick & Lbr. Co., 118 So. 180, 151 Miss. 329; Halpin v. Rural Agricultural School Dist. No. 9, 194 N.W. 1005; Brill v. Lynn, 270 S.W. 20.

All necessary parties are before the court.

In equity a bill is never dismissed for want of proper parties on a demurrer. The proper rule is that laid down in the supreme court of the United States, in Minnesota v. Northern Securities Co., 184 U.S. 235, where if there be necessary defendants omitted, the court will require the complainant to amend by making them parties, failing which, the court will make no order whatsoever.

Aven v. Singleton, 96 So. 165, 132 Miss. 256; Griffith's Chancery Practice, 149.

And even if there be an appeal the cause will be remanded so that the necessary party may be brought in.

Burroughs v. Jones, 78 Miss. 240, 28 So. 944; Griffith's Chancery Practice, note 61, page 149; compare Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Smith v. Denny, 90, Miss. 439, 43 So. 479.

The deed tendered is valid and in any event the chancery court may decree any further conveyance if necessary.

Moore v. Crawford, 130 U.S. 122, 9 S.Ct. 447, 32 L.Ed. 878; Cheney v. Libby, 134 U.S. 68, 10 S.Ct. 498, 33 L.Ed. 818; Willard v. Tayloe, 8 Wall. 557, 19 L.Ed. 501; Kentucky Distilleries & Warehouse Co. v. Blanton, 149 F. 31, 40, 41.

J. W. Dulaney and J. W. Bell, both of Tunica, and Holmes, Canale, Loch & Glankler, of Memphis, Tenn., for appellees.

Because of lack of mutuality, specific performance is not granted to minor complainants. This is the majority rule.

Morrison v. Kinstra, 55 Miss. 71; Bracey v. Miller (Ark.), 278 S.W. 41, 43 A. L. R. 114; 43 A. L. R. 120, Annotation; 25 R. C. L....