Union & Planters' Bank & Trust Co. v. Corley

• Decision Date: 12 January 1931
• Docket Number: 29023
• Citation: 161 Miss. 282,132 So. 78
• Parties: UNION & PLANTERS' BANK & TRUST CO. v. CORLEY
• Court: Mississippi Supreme Court

132 So. 78

161 Miss. 282

UNION & PLANTERS' BANK & TRUST CO. v. CORLEY

No. 29023

Supreme Court of Mississippi

January 12, 1931

Division B

(Division B.) ON PLEA IN BAR.

APPEAL AND ERROR. Vendor's employment of caretaker and execution of contingent rent contract on information that vendee would remove, held not to bar vendor's appeal from decree denying specific performance and allowing recovery of rent.

In an appeal from a decree denying specific performance and a decree for rent entered in favor of the complainant, where an appeal is taken from such decree, and, pending such appeal the appellant is reliably informed that the vendee or tenant will remove from the premises, and, in order to protect the interest of all parties concerned, he employs a caretaker of the property and makes rent contracts subject to the rights of the parties on appeal, such conduct is not inconsistent with the appeal, and is insufficient to bar the appeal on the ground of accepting the benefits of the decree.

(Division B. March 23, 1931.) [133 So. 232. No. 29023.] (Suggestion of Error Overruled April 20, 1931.) ON THE MERITS.

1. SPECIFIC PERFORMANCE. In suit for specific performance of contract for sale of lands, complainant must allege and prove title free from reasonable doubt. In a suit to specifically enforce a contract for the sale of lands, a complainant must allege and prove a title free from reasonable doubt. 2. VENDOR AND PURCHASER. Contract for sale of separate tracts of land, each dependent upon different considerations and conditions, is severable; where contract for sale of separate tracts of land is severable, complainant may have specific performance of sale of one tract, although sale of both cannot be specifically enforced. A contract for the sale of two different tracts of land, separate from each other, and dependent upon different considerations and conditions, is severable, although embraced in one instrument; and if the complainant is entitled to specific performance of either of said contracts, he may have such relief, although he cannot specifically enforce both. 3. VENDOR AND PURCHASER. Contract to convey land by general warranty deed implies contract to convey perfect, fee-simple title, unless restricted by other clauses. A contract to convey land by a general warranty deed implies a contract to convey a perfect, fee-simple title unless restricted by other clauses. 4. VENDOR AND PURCHASER. To warrant specific performance of contract conveying nonrecord title, facts must be undisputed, and law clear and title free from reasonable doubt. If equity has jurisdiction to decree specific performance of a non-record title, such as by adverse possession, the facts must not be in dispute, and the law must not be doubtful as to its construction, and the title must be free from reasonable doubt. 5. VENDOR AND PURCHASER. "Marketable title" means title which can be sold at reasonable price to willing buyer and that can be mortgaged as reasonable security. A "marketable title" means not merely a title valid in fact, but one which can be sold at a fair and reasonable price to one willing to buy, and one that can be mortgaged to a person willing to lend money upon reasonable security.

HON. R E. JACKSON, Chancellor.

APPEAL from chancery court of Coahoma county, Second district, HON R. E. JACKSON, Chancellor.

Suit by the Union & Planters' Bank & Trust Company against W. D. Corley. From an adverse decree, complainant appeals. On plea in bar of appeal. Plea overruled.

ON THE MERITS.

APPEAL from chancery court of Coahoma county, Second district.

HON. R. E. JACKSON, Chancellor.

Suit by the Union & Planters' Bank & Trust Company and others against W. D. Corley. From the decree rendered, complainants appeal and defendant cross-appeals. Affirmed.

See, also, 132 So. 78.

STATEMENT OF FACTS.

The Union & Planters' Bank & Trust Company, the Matheny Dixon Company, and Lorenzo E. Anderson & Company filed a bill in the chancery court of Coahoma county against W. D. Corley seeking specific performance of the following contract:

"This agreement made and entered into this, the 21st day of February, 1927, by and between Union & Planters Bank & Trust Company, of Memphis, Tennessee, the Matheny, Dixon & Company of Springfield, Illinois, and Lorenzo E. Anderson & Company, St. Louis, Missouri (on behalf of the bondholders in a certain deed of trust of date December 1, 1924, executed by E. M. Townes and Lida C. Townes to the Union & Planters Bank & Trust Company, Oliver J. Anderson and Charles Clark, as trustees, and conveying the lands, among others, hereinafter described, in LeFlore county, Mississippi), parties of the first part, and W. D. Corley of Coahoma county, Mississippi, party of the second part, witnesseth: The parties of the first part have agreed to sell and convey, or cause to be conveyed, to the second part, and the party of the second part has agreed to buy, the lands hereinafter mentioned, when and if said second parties or their designees acquire title thereto, said lands being located in LeFlore county, Mississippi, and being described as follows, to-wit: That certain tract of land situated in the county of LeFlore, state of Mississippi, comprising three thousand four and sixty-five hundredths acres, more or less, described as follows, to-wit: -- The southeast quarter and the west half of the northeast quarter, and the east half of the west half of section eight; all of section sixteen, all of section seventeen; all of section eighteen; lots one, two, three and four of section twenty; lots one, two and three of section twenty-one; all in township twenty-two, north, range, one, east. Also lots ten and eleven in section fifteen, and lots one and two and three, in section nineteen, all in township twenty-two north, range one east. The total purchase price of said lands is one hundred five thousand dollars ($ 105,000) which is to be paid as evidenced by notes as follows: One note for six thousand three hundred dollars which shall represent one year's interest on said purchase price of one hundred five thousand dollars which said interest note is to be made payable December 1, 1927, said interest being from January 1, 1927, to January 1, 1928. One note for ten thousand five hundred dollars payable on or before January 1, 1928; and nine notes for ten thousand five hundred dollars each payable annually thereafter on or before January 1, of each succeeding year for nine successive years, and all of said notes bearing interest at the rate of six per centum per annum, said interest to be evidenced by separate interest notes, and said interest to be paid annually on the remaining unpaid portion of the principal, and said interest notes to be paid on anniversary date of said notes, and all of said notes to be dated January 1, 1927; but, of course, said interest notes bear no interest except after maturity. It is further understood and agreed that the parties of the first part deliver possession of said above described premises on this date, and will convey the title, or cause it to be conveyed, when and as soon as title is acquired by them or other for them, at which time the second party agrees to execute said notes which shall be secured by a trust deed conveying said lands, which said trust deed shall be upon the regulation form used by the Union & Planters Bank & Trust Company in its title department. It is understood and agreed that all of said lands shall be conveyed by general warranty deed as of date January 1, 1927, except the above described lands in section 16, the warranty of which will extend only unto the unexpired lease thereon. The second party, of course, assumes and agrees to pay all taxes on said lands for the year 1927. The first party agrees, upon the terms and conditions hereinafter mentioned, to sell and convey to the second party and the second party agrees to purchase, upon the terms and conditions hereinafter mentioned, the lands situated in Tallahatchie county, Mississippi, described as follows, to-wit: That certain tract of land situated in the Second judicial district of the county of Tallahatchie, state of Mississippi, comprising four hundred fifty-one acres of land, more or less, described as follows, to-wit: Lots six, seven, eight, nine, ten and eleven, except parts of lots eight and nine, lying east of the right of way of The Yazoo and Mississippi Valley Railroad company, and north of its Phillip-Charleston branch, and those parts of lots five and twelve lying east of Mound Bayou, all in section twenty; and the northeast quarter of section twenty-nine, less right of way of said railroad company; all in township twenty-two, range one east. When the first parties or any other person for them, acquires title to said land, they will sell and convey the same by general warranty deed at and for a price of forty thousand dollars, upon the following terms and conditions, to-wit: The said forty thousand dollars shall be payable in ten equal annual installments and shall bear interest at the rate of six per centum per annum from the date of delivery of said property until paid, interest payable annually, and the first installment shall be due and payable on January 1, of the year following the year in which possession of the said property is delivered to the said Corley in time for farming during that year, and the interest on said purchase price shall be paid from and after date of delivery of possession of said land, and the said deferred payments shall be secured by a vendor's lien and deed of trust upon the land so conveyed; and, if desired, by the first parties, separate interest notes will be executed for said interest. It is understood and agreed between the parties hereto, however, that, in the event it...