Spellman v. McKeen

• Decision Date: 11 April 1910
• Docket Number: 14445
• Court: Mississippi Supreme Court
• Parties: RUFUS A. SPELLMAN ET AL. v. SAMUEL C. MCKEEN

51 So. 914

96 Miss. 693

RUFUS A. SPELLMAN ET AL. v. SAMUEL C. MCKEEN

No. 14445

Supreme Court of Mississippi

April 11, 1910

FROM the chancery court of, first district, Hinds county, HON. G GARLAND LYELL, Chancellor.

McKeen appellee, was complainant in the court below; Spellman and others, appellants, were defendants there. The bill sought to enforce a vendor's lien on lands. fro a decree overruling a demurrer to the bill of complaint the defendants appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed.

Watkins & Watkins, for appellant, Spellman.

There is no allegation in the bill that the appellants had notice other than such as would be inferred as a matter of law from a reading and inspection of the deed itself.

The rule in this state on one side of the question will be found stated in the case of Deason v. Taylor, 53 Miss 697, where it is held that land may be subjected to the payment of the unpaid purchase money, although no express reservation of the lien was had, in a case where the deed under which the vendee claimed showed on its face that the purchase money was unpaid at the time of the delivery of the deed; the court holding that a vendee necessarily took notice of all recitals contained in deeds through which his title was derived, and that since the deed under which the vendee claimed showed that the land was sold on a credit, it became the duty of the vendee to inquire as to whether or not the purchase money had been paid, as a matter of fact, at the time of his purchase. The court now will note that case is one where the direct information was contained in the regular chain of the vendee's title.

Is the failure of the deed to state that the purchase money was paid, equal to saying that it was unpaid? Or to state the proposition differently, was not the failure of the deed to state that the purchase money was unpaid, equal to stating that it had been paid? It may be stated as the rule announced in all cases where land has been subjected to the payment of unpaid purchase money in the absence of a reservation of the lien, and in the absence of notice from other sources, that the deed itself must disclose the fact that the purchase money was unpaid.

The court will notice that the deed uses the language "In consideration of two thousand dollars and other considerations."

The vendor is not suing to recover other considerations. He is suing to recover the $ 2,000, which was the true consideration, and subject the land to the payment of the same. The fact that he may have thought the words "other considerations" created a lien in his favor, if he did so think, will not in any manner help him. The court should presume that the $ 2,000 was paid. The same presumption applies to the other considerations, since the vendor failed to state that the other considerations were unpaid. What is the difference between the $ 2,000 and the other considerations? There being no statement in the deed that they were unpaid, the presumption is that they were both satisfied when the deed was delivered.

Counsel for the appellee says that if Spellman had gone from Massachusetts to Terre Haute, Indiana, and asked McKeen what he meant by his "other considerations," he would have found out that the original two thousand dollars purchase money note was unpaid. That may be very true; it may have been that the most idle question on the part of Spellman to McKeen, if Barton's name was brought up, might have elicited the same information, but that does not change the rule in this case. This question is most admirably discussed in the case of Moeller & Holthaus, 12 Mo.App. 526.

Alexander & Alexander, for appellant, Cahn.

In the absence of registry laws purchasers were at their peril touching all liens, even secret ones. Registry acts are for the benefit of purchasers and others taking title to land. Wade on Notice, § 96.

Purchasers who avail themselves of the registry of deeds "may rest there and purchase in absolute security provided they do so without knowledge, information, or such suggestions from other facts as would be gross negligence to ignore." Ib § 96.

As there were no "other considerations" (i. e. considerations other than the $ 2,000) the recital of "other considerations" was false. There was no other consideration to be learned either from the recitals or by inquiry. No outside inquiry was called for in regard to the $ 2,000. That was a recited consideration, and any considerations to be learned outside the deed by inquiry must have been distinct from and independent of the $ 2,000.

According to appellee the "other consideration" is not another but the same consideration as the $ 2,000. The deed, we are told, must be taken as if the words "other considerations" meant $ 2,000 not paid, or as if it read "in consideration of $ 2,000 and of $ 2,000 not paid"--a palpable absurdity. One would naturally suppose there were two distinct considerations, viz.: $ 2,000 paid and something else to be ascertained on inquiry. Yet, there was in fact no other consideration.

Let us suppose the intending purchaser had written to McKeen this letter of inquiry: "I see your deed says $ 2,000 and other considerations. What considerations were there other than the $ 2,000?" If he answered truthfully and responsively he would have answered: "There were no considerations other than the $ 2,000." That would be all there was to it.

We are asked to believe that when asked about a fish he would answer about a serpent.

This case calls for no rambling search of authorities, but for a...