Schwartz v. Lieber
| Decision Date | 04 November 1901 |
| Citation | 79 Miss. 257,30 So. 649 |
| Court | Mississippi Supreme Court |
| Parties | SOLOMON SCHWARTZ v. RACHAEL G. LIEBER |
October 1901
FROM the chancery court of, first district, Hinds county. HON HENRY C. CONN, Chancellor.
Mrs Lieber, the appellee, was complainant and Schwartz, the appellant, was defendant in the court below. From a decree overruling defendant's demurrer to the bill of complaint he appealed to the supreme court. The facts are sufficiently apparent from the opinion of the court.
Affirmed.
Green & Green, for appellant.
Section 4233, code 1892, provides: "A conveyance or other writing, absolute on its face, where the maker parts with the possession of the property conveyed by it, shall not be proved, at the instance of any of the parties, by parol evidence, to be a mortgage only, unless fraud in its procurement be the issue to be tried."
This deed, made part of the bill, is absolute on its face and the grantor parted with the possession, hence it cannot be shown to be a mortgage by parol. Code, supra; Johnson v. Johnson, 74 Miss. 552.
As a part of his bill, complainant has two letters from defendant, and these are the written instruments on which reliance is placed to take the agreement out of the statute. By § 528 of the code it is provided: "Exhibits filed with a bill, as a part of it, shall be considered, on demurrer, as if copied in the bill." Hamer v. Rigby, 65 Miss. 44; Insurance Co. v. Holmes, 75 Miss. 401.
When, as here, the pleader makes averments which are repugnant to the terms of the instrument on which the action is based, and that instrument is a part of that pleading, as an exhibit, then the exhibit will control. Mortgage Co. v. McManus, 68 Ark. 263.
In Deposit Co. v. Lackey, 149 Ind. 14, it is said: To like effect, Association v. Plank, 152 Ind. 196; Wagner v. Maynard, 649 Ill.App. 244.
Appellee bases her whole case on the two letters annexed as exhibits "B" and "C," and under their terms she must stand or fall. Again, by the demurrer to this bill appellant did not admit the conclusions of the pleader, but only the facts well pleaded.
Brame & Brame, for appellee.
Appellee is not required by the statute to show that, at the time the deed was executed, there was a written agreement that it should be a mortgage. It provides that the agreement, though existing at the time of the conveyance in parol, may be shown only by writing to be a mortgage. The written evidence showing the intent or agreement of the parties as to the nature of the deed may be executed long subsequent to the deed itself.
The statute of frauds does not require that one piece of paper shall contain the memorandum of contract, and it may be in several if the paper signed by the party to be charged makes such reference to the other writing as to enable the court to consider them all together as constituting the terms of the bargain, and parol evidence is admissible to identify the paper referred to and apply the reference. Wilkinson v. Taylor, 67 Miss. 231; 1 Benjamin on Sales, secs. 220, 221; Reid on Statute of Fraud, sec. 341 et seq.
The allegations of the bill, which are admitted by the demurrer, clearly show that, when the deed was executed, it was understood and agreed between the parties that it should be a mortgage. The only question, then, was as to the manner of proving this fact, and the defendant, by his own letter, furnished all the proof that was necessary. He did not say in this letter that he was ready to resell the property to complainant, but he stated the essential fact that, when the deed was executed, it was understood and agreed that, upon payment of $ 1,050, the amount of the debt, he would reconvey the property.
The true rule, and one which is applicable, is announced in the following well considered cases: Weathersly v. Weathersly, 40 Miss. 462; Freeman v. Wilson, 51 Miss. 329; Klein v. McNamara, 54 Miss. 90.
Argued orally by Marcellus Green, for appellant, and by L. Brame, for appellee.
This is a bill by appellee to have a deed for the conveyance of land, absolute on its face, declared to be a mortgage, and to redeem the property therein conveyed. The appellant demurred to the bill, and, the same being overruled, he appeals. For several reasons, we think the decree correct:
1. Though the deed is absolute on its face, yet there is nothing in the bill to clear show that appella...
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Dixon v. Wright
... ... 130, 12 Am. Rep. 671 ... Parol ... evidence is admissible under the statute ... Barkwell ... v. Swan, 69 Miss. 907; Schwartz v. Lieder, 79 Miss ... 257, 30 So. 649; Culp v. Wooten, 79 Miss. 503, 31 ... So. 1; Fultz v. Peterson, 78 Miss. 128, 28 So. 829; ... Cosby v ... ...
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Jordan v. Jordan
...land was the possession of Mr. Jordan, and this possession was in no wise altered or changed after the execution of the deed. In Schwartz v. Lieber, 79 Miss. 257, the court through Justice TERRALL, expressly construes this statute and says that this section requires this proof in writing on......
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Armstrong v. Owens
...128, where the vendor had not parted with the possession of the property, and it was held that the statute did not apply. In Schwartz v. Lieber, 79 Miss. 257, the decision being upon a demurrer to a bill where it held that the bill need not allege that the maker retained possession, nor all......
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Nix v. Nix, 37658
...procurement to be tried, and that proof of its being in fact a mortgage rests entirely in parol. Appellant relies upon Schwartz v. Lieber, 79 Miss. 257, 30 So. 649, 650. In that case a demurrer to a similar bill was overruled and on appeal this Court held that the action of the lower court ......