White v. Moales

• Decision Date: 13 June 1927
• Docket Number: 26053
• Citation: 147 Miss. 758,113 So. 341
• Court: Mississippi Supreme Court
• Parties: WHITE et al. v. MOALES. [*]

113 So. 341

147 Miss. 758

WHITE et al. v. MOALES. ^[*]

No. 26053

Supreme Court of Mississippi

June 13, 1927

(Division A.)

1 PLEADING. Demurrer to bill on ground, of variance between allegations and exhibits attached thereto held properly overruled (Hemingway's Code, section 339).

Demurrer to bill of complaint basing relief sought on notes and deed of trust, filed as exhibits thereto, on ground of variance between allegations of bill and exhibits held properly overruled, under Code 1906, section, 579 (Hemingway's Code, section 339), providing that, in case of conflict between recitals of bill and exhibits, exhibits control.

2. VENDOR AND PURCHASER. Grantee accepting deed and thereafter selling land at profit held estopped to deny delivery of deed by grantor.

Grantee accepting deed, placing it of record, and thereafter selling land to another at profit, held estopped to deny that deed was delivered, or liability for purchase price of land because deed was not delivered during grantor's lifetime.

3 MORTGAGES. Evidence held to support finding that notes and deed of trust were not signed on condition that signature of another would be secured.

Evidence held to support finding by chancellor that, at time purchaser executed notes and deed of trust, there was no condition or understanding that signature of another was to be secured as condition precedent to their validity, or that, if such understanding did exist, it was subsequently waived.

4 ESTOPPEL. Purchaser accepting deed and selling land at profit held estopped to assert that notes and deed of trust were signed conditionally.

Purchaser having accepted deed, placed it of record, and subsequently sold land at profit to another, who afterwards denuded it of timber thereon, held estopped to assert that notes and deeds of trust executed to grantor were on condition that signature of another would be secured.

5. BILLS AND NOTES. Purchaser failing to complete purchase under contract, and not signing notes and deed of trust, held not liable personally.

Where one of purchasers under contract for sale of land failed to complete transaction and notes and deed of trust thereon were executed by other purchaser, the one not signing such notes and deed of trust is not liable thereon personally.

6. MORTGAGES. Failure of decree to fix liability of defendants in suit to determine ownership of notes and to foreclose deed of trust, held erroneous.

Where bill, in suit to determine ownership of indebtedness evidenced by notes and for foreclosure of deed of trust securing payment thereof, also prayed for a personal decree against several defendants, failure of court, on entering decree adjudicating such ownership and ordering foreclosure, to also definitely fix liability of defendants and amount thereof held erroneous.

Division A

APPEAL from chancery court of Tate county.

HON. J. H. CARLWELL, Special Chancellor.

Suit by Mrs. Mary Agnes Moales, as administratrix of the estate of W. H. Moales, deceased, against R. P. White, C. V. Kizer, and J. T. Kizer, subsequently amended so as to substitute Mrs. Mary Agnes Moales individually as complainant. Decree for complainant, and defendants White and C. V. Kizer appeal. Reversed and remanded.

Decree reversed and cause remanded.

E. D. Dinkins and May, Sanders & McLaurin, for appellants.

I. The court erred in overruling the demurrer to the bill.

This suit was against R. P. White, C. V. Kizer and J. T. Kizer on an alleged joint and several indebtedness of R. P. White and C. V. Kizer. While the bill of complaint charged a joint and several indebtedness, the exhibits to the bill showed several liability of only one of the parties. This was a fatal variance and the demurrer should have been sustained. Kimbrough v. Ragsdale, 69 Miss. 677.

Where a written contract sued on shows no cause of action, the bill is demurrable, although the averments conflict with the exhibits. Swope v. Watson, 136 Miss. 348.

It will be noted that the bill of complaint charged a joint and several liability of White and Kizer on the alleged deed of trust and notes; and the deed of trust and notes when examined showed that they had never been signed at all by Kizer; hence, no recovery could have been properly made against Kizer upon the contract as sued upon, because, as declared by the court in Kimbrough v. Ragsdale, supra, an action will not lie upon alleged joint liability so as to sustain a several judgment. In other words, the exhibits to the bill showed an entirely different cause of action from that sued upon. The rule is that the exhibits control as against the bill.

II. The court erred in holding that there had been a delivery of the deed from Moales to White and Kizer, because it was not delivered during the lifetime of Moales. The effect of the court's decision in this case is that a dead man can deliver a deed. We submit that the rule is too well settled the other way to justify extended citation. Davis v. Williams, 57 Miss. 843; Weisinger v. Cock, 67 Miss. 511; 7 So. 495, 19 A. S. R. 320; Ligon v. Barton, 88 Miss. 135, 40 So. 555.

The execution and delivery of the deed was essential to enable anyone to maintain an action against these appellants. The existence of the alleged indebtedness depended upon the vesting of title in them by the alleged deed. The deed not having been delivered, title not having vested, no indebtedness arose.

III. The court erred in holding that R. P. White and C. V. Kizer were bound by the notes and deed of trust, because: (a) White signed on condition that the signature of Kizer would be secured, which condition was never met; (b) Kizer was not bound because he never signed the notes and deed of trust and never accepted the deed.

It is well settled that a note signed on condition that others shall sign is voidable if the others do not sign and this condition may be pleaded against the payee or his representatives. N. I. L., section 2594, Hemingway's Code; Goff v. Bankston, 55 Miss. 578; State v. Allen, 69 Miss. 508; Note to Benton County Savings Bank v. Boddicker, 45 L. R. A. 343, 3 R. C. L., page 861.

It is well-settled law that the proof must correspond with the pleadings and that the overruling of a demurrer does not preclude objection to evidence which does not conform to the pleading. Griffith's Ch. Pr., sections 564-65; Pierce v. Lacey, 23 Miss. 192; Bowman v. O'Reilly, 31 Miss. 261; U. S. Casualty Co. v. Malone, 126 Miss. 288; 21 R. C. L., pages 601-03-05.

IV. The decree was erroneous because: (a) It held that Mrs. Moales, the complainant, was the owner of the alleged indebtedness evidenced by the notes and deed of trust; (b) the decree did not specify who, if any one, did owe the debt, but without adjudicating that essential fact ordered the land to be sold.

"Every decree . . . of sale ought to be perfect in itself, or as nearly so as possible." 19 R. C. L., section 355, at page 549.

"A decree as a judgment should show on its face what the court has decided." Wenwag v. Brown, 26 Am. Dec. 433.

In a foreclosure proceeding, "The decree should indicate with certainty the persons respectively to and against whom the relief, and the several features thereof, is granted." Griffith's Ch. Pr., section 626.

If we apply the foregoing rules to the decree in this case, it will not survive the test.

Charles H. Moffat and Herbert H. Holmes, for appellee.

I. The first error assigned is: "The court erred in overruling the demurrer to the bill." We do not think a careful scrutiny of the bill and the exhibits by the court will induce the belief that there was any material variance between the averments in the bill and the recitals in the exhibits.

A variance as defined by our courts, in its legal sense, means a substantial departure in the evidence adduced from the issue as made by the pleadings. Yorty v. Case Threshing Machine Co., Ann. Cas. 1913D 64 and note at 68; Williams v. U.S. 3 App. Cas. (D. C.) 335.

The rule requiring exhibits to conform to the bill means nothing more than that on demurrer the exhibits shall be treated as if copied in the bill. The exhibits were attached to the bill and made a part thereof, and asked to be treated by the court as if fully copied therein. Section 579, Code of 1906; House v. Gumball et al., 78 Miss. 259, 29 So. 71; McKinney v. Adams, 95 Miss. 832, 50 So. 474.

II. It is alleged that: "The court erred in holding that there had been a delivery of the deed from Moales to White and Kizer, because it was not delivered during the lifetime of Moales." We do not insist that a dead man can execute or deliver a deed. Death, of course, seals his lips and stills his hand, but as well said by all of our courts, he can set machinery in motion during his lifetime, looking to the delivery of a deed even after his death, and the books abound with cases where the delivery was effected after the death of the grantor.

The proof overwhelmingly showed Dean to be the attorney for White and Kizer. If he was, then there was a perfect delivery of the deed. Our courts have uniformly held that the question of delivery is one of intent. Davis v. Williams, 57 Miss. 843. The same principle is announced in Hall v. Waddell, 78 Miss. 26, 27 So. 937; Wilson v. Bridgeforth, 66 So. 524; Kane v. Doe, 9 S. & M. 387. In addition to the foregoing it would seem that defendants are unquestionably estopped from denying their liability in view of the benefits received under the deed. 16 Cyc. 787; citing White v. Jenkins, 33 So. 287; Wood v. Bullard, 151 Mass. 324; Calhoun v. Pierson, 10 So. 880, and many others.

III. The court did not err in holding that R. P. White and C. V Kizer were bound by the notes and deed of trust. While it is true that White said he signed the notes and trust deed...