Seymour v. Evans

• Decision Date: 03 June 1992
• Docket Number: No. 89-CA-0504,89-CA-0504
• Citation: 608 So.2d 1141
• Parties: Edna C. SEYMOUR v. Larry EVANS, Gina Evans, Jerry W. Coleman, Bonnie Ann Coleman, Dudley S. Cruse and Lori J. Cruse.
• Court: Mississippi Supreme Court

Page 1141

608 So.2d 1141

Edna C. SEYMOUR v. Larry EVANS, Gina Evans, Jerry W. Coleman, Bonnie Ann Coleman, Dudley S. Cruse and Lori J. Cruse.

No. 89-CA-0504.

Supreme Court of Mississippi.

June 3, 1992.

Rehearing Denied Dec. 3, 1992.

Charliene Roemer, Charles Pringle, Biloxi, for appellant.

Dempsey M. Levi, Levi & Denham, Ocean Springs, for appellees.

Before DAN M. LEE, P.J., and ROBERTSON and McRAE, JJ.

McRAE, Justice, for the court:

This is an appeal from a judgment of the Chancery Court of Jackson County, dated March 30, 1989. Appellees are purchasers of real property who, after accepting deeds and obligating themselves to pay, discovered that zoning ordinances prevented them from using the property as they had intended. The chancellor set aside the deeds, finding that they violated the seller's implied warranties. He further ordered the return of the appellees' purchase payments and awarded consequential damages and attorney's fees to the appellees. On appeal, the seller assigns several issues for review. We shall address two:

I. THE CHANCELLOR ERRED IN FINDING THAT THE SELLER VIOLATED HER IMPLIED WARRANTIES BY CONVEYING LAND IN A MANNER WHICH VIOLATED COUNTY SUBDIVISION REGULATIONS.

II. THE CHANCELLOR ERRED BY AWARDING DAMAGES AND ATTORNEY'S FEES TO THE BUYERS.

We reverse and render on grounds that the deeds by which the appellees obtained their properties were valid and did not give rise to a breach of implied covenants.

FACTS AND PROCEEDINGS

The events leading up to this appeal began when appellant Edna C. Seymour decided to sell part of the land she owned in Jackson County, Mississippi. On August 22, 1983, she conveyed by warranty deed a three-acre parcel to John M. and Katherine McDonnell ("the McDonnells"). The McDonnells executed a promissory note and deed of trust in favor of Seymour for the deferred portion of the purchase price. On September 13, 1983, the McDonnells conveyed by warranty deed this same three-acre tract to Jerry W. and Bonnie Ann Coleman ("the Colemans"). The Colemans assumed the McDonnells' indebtedness to Seymour.

Two couples, Larry and Gina Evans ("the Evans") and Dudley and Lori Cruse ("the Cruses"), expressed an interest in purchasing another tract containing five and one half acres which Seymour offered for sale. They requested that the property be divided equally and conveyed to them separately. Accordingly, Seymour executed two warranty deeds on April 20, 1984. One conveyed to the Evans a parcel of land containing about 2.75 acres; the other conveyed to the Cruses a parcel of equal size. Seymour also conveyed to each couple an easement across her unsold property for purposes of ingress and egress. The Evans and the Cruses executed promissory notes and deeds of trust in favor of Seymour.

The Colemans, the Evans, and the Cruses all intended to use their newly-conveyed properties for residential purposes. The land was unimproved, so, after receiving their deeds, the grantees cleared the property of underbrush and began to make improvements thereon.

On May 14, 1986, about two years later, the Cruses filed an application with the Jackson County Planning Department for a permit to locate a mobile home on their tract. Roger Clark, then Assistant Director of the Jackson County Planning Department, told them that a permit could not be issued because the division of April 20, 1984 violated the Jackson County subdivision ordinances. As Clark explained it, the property could be brought into compliance only by procuring plat approval and by paving a road for ingress and egress. The Cruses informed the Evans of their difficulties, and both couples contacted Seymour. Seymour said there was nothing she could do.

The appellees subsequently met on several occasions with officials of the Jackson County Planning Department and the Planning Commission. At each meeting, they were told that no permits could be issued until the properties were brought into compliance with the subdivision regulations. The appellees also approached Jackson County Supervisor Tommy Brodnax. Brodnax also advised them that the subdivision regulations would have to be satisfied before permits would issue. Finally, appellees appeared informally before the Jackson County Board of Supervisors. They received the same advice there. The Colemans and the Evans took the various county officials at their word and never filed for permits. The parties agree that Seymour was unaware of the subdivision regulations at the time when she conveyed the subject properties.

On April 13, 1988, the appellees filed a complaint in chancery court against Seymour, John Phillips and Associates (Seymour's realtor), Century 21-K Realty (the Evans' and the Cruses' realtor), the McDonnells, and Jackson County. The two real estate agencies were subsequently dismissed as part of a negotiated settlement. The county was dismissed with prejudice on March 3, 1989. The chancellor entered judgment against Seymour and the McDonnells on March 30, 1989. The decree set aside the warranty deed from Seymour to the Evans, the warranty deed from Seymour to the Cruses, and the warranty deed from the McDonnells to the Colemans. The decree also required Seymour to reimburse the Evans and the Cruses for all payments made on the property together with their down payments, taxes, surveyors fees, forestry fees, loss of wages, closing costs, and attorney's fees.

LAW

I. DID SEYMOUR VIOLATE THE COMMON LAW SELLER'S WARRANTIES BY CONVEYING LAND IN A MANNER WHICH VIOLATED COUNTY SUBDIVISION REGULATIONS?

The Evans, the Cruses, and the Colemans each received their respective tracts by warranty deed. According to Miss.Code Ann. Sec. 89-1-33:

The word "warrant" without restrictive words in a conveyance shall have the effect of embracing all of the five covenants known to common law, to wit: seisin, power to sell, freedom from encumbrance, quiet enjoyment and warranty of title.

The chancellor found that the conveyances by which appellees acquired their interests in the subject properties "violate[d] the common law covenants of warranty granted under section 89-1-33, especially power to sell." His Findings of Fact and Conclusions of Law does not disclose the analysis he employed in reaching this outcome. ¹ In order to determine whether the chancellor correctly applied the law of implied warranties, we must therefore consider each covenant separately. Before doing so, however, we must first address a threshold question: Did the Seymour conveyances in fact violate the Jackson County subdivision ordinances, and if so, would the appellees have been unable to obtain variances? If the appellees could have obtained either permits or variances, then the basis for their complaint would have disappeared.

A. Were Appellees In Fact Unable to Obtain Permits or Variances?

Seymour argues that the subject conveyances do not fall within the scope of the ordinance. Thus, she maintains, the county should have granted the requested permits. Section 106.1 of the Jackson County subdivision ordinance provides in pertinent part:

These regulations and development standards shall apply to the following forms of land subdivisions:

a. The division of land into two or more tracts, lots, sites, or parcels, any part of which, when subdivided, shall contain less than three (3) acres in area.

According to Seymour, the Colemans' parcel does not fall within the scope of Sec. 106.1 since the Colemans' parcel contained three--not less than three--acres. This argument ignores the clear language of Sec. 106.1(a). Subsection (a) does not exclude all parcels not containing less than three acres; rather, the subsection excludes subdivisions which contain no parcels of less than three acres. The parcels conveyed to the Evans and the Cruses, along with other previous conveyances to which the record refers, all contain less than three acres. Since the Colemans' tract is part of the same division out of which the Evans and the Cruses acquired their respective interests, subsection (a) applies to the Colemans' parcel.

Seymour next argues that even if subsection (a) places her conveyances within the scope of the ordinance, Sec. 106.1(f) takes them out. Subsection (f) provides:

The provisions of this ordinance shall not apply to a sale or conveyance of a parcel of land constituting a part of a larger unplatted tract where such conveyance is made by a metes and bounds description, and no dedication, vacation, or reservation of any public or private street or easement is made within such larger unplatted tract subsequent to the effective date of this ordinance.

The ordinance went into effect in 1970. It is unquestioned that the parcels conveyed to the appellees constitute parts of "a larger unplatted tract" retained by Seymour.

                It is also undisputed that the appellees have access to their tracts by way of an easement across the "larger unplatted tract."   The only real issue, then, is whether the easement was created subsequent to 1970.  If so, then the conveyances will not fall under the Sec. 106.1(f) exception
                

Seymour contends that the property contained within the easement was surveyed for the purpose of building a county road in 1966. The county, however, never acquired an interest in the property. All the relevant conveyances appearing in the record occurred subsequent to 1970. The chancellor did not err in finding that Seymour's conveyances to the appellees were governed by the Jackson County subdivision ordinances.

It is thus clear that Seymour's conveyances conflicted with the Jackson County subdivision ordinances. It is not clear, however, that the appellees would have been unable to obtain hardship variances if they had sought them. If they had obtained variances, then the whole controversy now before the Court would have evaporated. The chancellor apparently assumed that the county would not have granted a variance, but the record does not provide a solid foundation for this assumption. Various...