Watts v. Bonner

• Decision Date: 27 May 1889
• Citation: 66 Miss. 629,6 So. 187
• Court: Mississippi Supreme Court
• Parties: JOHN WATTS v. WILLIAM BONNER AND WIFE

6 So. 187

66 Miss. 629

JOHN WATTS v. WILLIAM BONNER AND WIFE

Supreme Court of Mississippi

May 27, 1889

FROM the chancery court of Jones county, HON. T. B. GRAHAM Chancellor.

Appellees Bonner and wife, filed the bill in this case to enjoin a sale under a deed of trust executed by them, and for cancellation of the deed. On final hearing the court decreed in favor of complainants, and defendants appealed.

The opinion of the court states the facts and the questions of law involved.

Decree reversed and cause remanded.

Fewell & Brahan, and Miller & Baskin, for appellant.

1. The court below considered the testimony, including the certificate or memorandum made by Niagara Fall, justice of the peace, as showing that there was no valid execution of the trustdeed. This memorandum was not official, and the justice had no power to bind anybody by it. Certainly it could not nullify his certificate of acknowledgment appended to the deed; he could not falsify that certificate.

The deed was signed and delivered, and the acknowledgment was officially taken and authenticated, and the validity of these acts cannot be affected by proof of a contemporaneous parol agreement evidenced by this certificate. It could have no more effect than parol proof going to show that Bonner stated at the time that he would not be bound by the deed.

If this statement had specified to what extent the trust-deed was to be qualified or modified, it might be contended that the two instruments should be considered together. But the statement contains nothing definite, and of itself amounts to nothing. To give it any effect, outside testimony is required, and to admit this would be a plain violation of the rule that parol testimony cannot be allowed to vary the terms of a written instrument.

2. We do not consider that there is any sufficient testimony in the case to sustain the court below in finding that there was a breach of the contract which had the effect of nullifying the trust-deed and entitling appellee to have it cancelled.

The only question is, did Bonner execute the deed?

The case shows that he did, and the outside statement of the justice of the peace is not to be considered as having any force.

On the whole record, it seems clear to us that there was no evidence sufficient to warrant the court in cancelling the trust-deed for the alleged failure of Watts and Patton to keep any contract made by them.

Nugent & McWillie, for appellees, filed an elaborate written argument based on the facts of the case, in which the following points were made:

1. The testimony of the complainant William Bonner, sustained by that of the witness Gray, who was present when the agreement was entered into between Bonner and Watts, fully sustains the allegations of the bill as to the terms of the original agreement.

2. The conduct of Watts is at variance with his statements as a witness. He delayed fixing the papers, and then intrusted the business to his agents to secure the execution of a deed which he no doubt knew he could not himself get signed.

3. At the time the trust-deed was executed, the parties stood in the relation to each other simply of debtor and creditor.

4. McIntosh and Fall were the agents of Patton & Co., and appellant is bound by what they did at the time the trust-deed was executed. Their testimony, apart from any other in the case, shows that the deed ought not to be enforced.

5. The deed was obtained through false and fraudulent representations that were not carried out and were never intended to be.

6. When the trust-deed was taken Patton & Co. were insolvent and were preparing to make an assignment, and hence knew they could not make the advances as agreed. Of this Bonner and wife knew nothing at the time; but when the fact developed and it transpired that Patton& Co. could not comply with the contract, Bonner used all possible efforts to continue his business and to reduce his damages.

7. Relying upon the promises of Patton & Co. to make the advances, Bonner embarked largely in business enterprises and was crippled and greatly damnified because of the failure of the other parties to furnish him the means stipulated for. But for the credit agreed to be extended him, he would not have undertaken such enterprises. His loss is therefore directly traceable to the failure of the other parties to comply with the contract. He should not be made to suffer this loss and at the same time be compelled to pay for the advances that were made.

8. The record presents issues of fact and the testimony was conflicting. The chancellor credited the testimony for complainant: it cannot be shown that any injustice was done the appellant.

OPINION

COOPER, J.

Watts and Patton, who were merchants under the firm name of W. H. Patton & Co., agreed to make certain advances to Bonner, who was engaged in the turpentine business and in farming, to enable him to carry on his said business, and the advances were to be secured by the execution of a deed of trust which Bonner and wife were to execute. In addition to the deed of trust, both parties contemplated the making of a written contract evidencing the agreement into which they had entered. The matter for some mouths rested in parol, and during this interval goods, money and supplies were advanced by Watts and Patton to Bonner, to the amount of fifteen hundred dollars. On the 15th of March Watts and Bonner met and it was agreed between them that Watts would on the next day send an agent with the contract and deed of trust to Bonner's residence (he living some distance in the country) for execution. Accordingly on the next day, A. T. McIntosh, the agent of Watts and Patton, and one Fall, a justice of the peace, who had been notified to attend for the purpose of taking the acknowledgment of Bonner and wife to the deed of trust, went to Bonner's residence. Mcintosh produced a deed of trust and a contract both of which had been prepared under Watts' direction, and tendered them to Bonner for execution. The deed of trust recited that Bonner was then indebted to Patton & Co. in the sum...