WILLIAMS v. BUSH et al

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Docket Number

No. 35754.

Attorney(S)

Jeff Collins, of Laurel, for appellant. The court erred in allowing the defendant to introduce testimony of oral agreement prior to and contemporaneous with the execution of the contract in question in this case, which sought to avoid and contradict the plain terms of the written agreement. Pack v. Thomas, 13 Smedes M. (21 Miss.) 11. Where a vendor has undertaken to sell a larger interest in land than he possesses, the vendee may as a rule not only obtain a decree of specific performance as to such title as the vendor can furnish, but may have a just abatement from the purchase money for the deficiency of title or quantity or quality of the estate. Matthews v. Patterson, 2 How. 729; Wilson v. Cox, 50 Miss. 133; McCorkle v. Brown, 9 Smedes M. (17 Miss.) 167; Chambliss v. Person, 77 Miss. 806, 28 So. 21; 36 Cyc., 740, Sec. 2, sub-sec. d; 25 R.C.L. 249, 250, Sec. 53. A strict tender is not necessary when the defendants repudiate any obligation on their part, or where it is evident from the facts of the case that any tender would be refused by the defendants, so that if made it would be an idle and unnecessary ceremony, it being sufficient in such a case to offer in the bill to do whatever equity may require or to pay whatever may or should be found by the court to be due. Wilbourn v. Bishop, 62 Miss. 341; Byers v. McDonald, 99 Miss. 42, 54 So. 664; Gannaway v. Toler, 122 Miss. 111, 84 So. 129; Peirce v. Halsell, 90 Miss. 171, 43 So. 83; Griffith's Mississippi Chancery Practice, Sec. 523. Shannon, Beard Pack and J.R. Buchanan, all of Laurel, for appellees. Application to this case of a fundamental, long established and generally recognized rule of chancery procedure will dispose of appellant's first contention. The evidence which appellant considers as violative of the parol evidence rule was objected to repeatedly throughout the trial. None of these objections was overruled. In each instance, the court announced that it reserved its ruling. At no stage of the trial, either before the testimony was closed or before the argument, did appellant request the court for a ruling on any of the evidence which had been admitted under reservation. The appellant thereby waived such objections. Mallory v. Walton, 119 Miss. 396, 81 So. 113; McInnis v. Manning, 131 Miss. 119, 95 So. 250; Griffith's Mississippi Chancery Practice, Sec. 583. The testimony was properly admissible as determinative of the question whether the instrument was delivered to the vendee absolutely or whether it was delivered to the vendee upon the condition that the minor son should wish the homeplace to be sold. Lynch v. Lynch, 121 Miss. 752, 83 So. 807; Hall v. Barnett et al., 71 Miss. 37, 14 So. 732; Chick v. Sisson, 95 Mich. 412, 54 N.W. 895; Stevens v. Stevens, 150 Mass. 557, 23 N.E. 378; Jordan v. Davis, 108 Ill. 336; Black v. Sharkey, 104 Cal. 279, 37 P. 939; Haviland v. Haviland (Iowa), 105 N.W. 354, 5 L.R.A. (N.S.) 283; 56 A.L.R. 746; 1 Am. Jur. 376. The case of Chapman v. Lott, 144 Miss. 841, 110 So. 793, is distinctly in point in this case and this case should be governed thereby.

Judges

Smith, C.J., delivered the opinion of the court.

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WILLIAMS v. BUSH et al.

1. SPECIFIC PERFORMANCE.

A bill for specific performance of a contract by a husband and wife to convey the wife's interest in land inherited by her and her son and to procure a deed through the chancery court to the son's interest was properly dismissed, especially since no decree could have been rendered against the son, who was a minor and not a party to the contract.

2. SPECIFIC PERFORMANCE.

Under a contract by a wife to convey her interest in land inherited by her and her minor son and to procure through the chancery court a deed to the interest of the son, who was not a party to the contract, the grantee suing for specific performance was not entitled to a decree for conveyance even of the interest to which the wife had title.

Smith, C.J., delivered the opinion of the court.

Mrs. L.E. Bush, formerly Mrs. Walters, and her minor son Max Newton Walters each owned an undivided one-half interest in certain land inherited by them from Mrs. Bush's former husband and Max Newton Walters' father. In July, 1944, Mrs. Bush executed and delivered to the appellant a deed to the land, reciting:

"For and in consideration of the amount of $2,000,000, of which amount the sum of $300.00 has been paid at the signing, execution and delivery of this instrument, we, the undersigned, L.E. Bush and wife, Mrs. L.E. Bush, hereby obligate ourselves within the next ninety (90) days, upon the payment by him of the remaining $1,700.00 to execute and deliver to J.A. Williams a general warranty deed to a one-half interest in the lands described as (description omitted), and to procure a deed through the Chancery Court to the said J.A. Williams to the one-half interest in said lands that belongs to Max Newton Walters, the said above described lands being owned jointly by the said Mrs. L.E. Bush and Max Newton Walters. . . .

"A failure on the part of the grantee to pay the grantors the remaining amount of $1,700.00 within the time above mentioned, shall constitute a forfeiture of this contract, and all monies theretofore paid shall be the property of the grantees."

Mrs. Bush declined to carry out this agreement and sent the appellant a check for the $300 paid her by him, which he declined to cash and tore up. Afterwards this suit for a specific performance of this contract was begun by the appellant, the parties defendant thereto being Mrs. Bush, her husband, and Max Newton Walters. The case was tried on bill, answer and proof and a decree was rendered dismissing the bill of complaint, the ground therefor not being set forth. Over the appellant's objection the appellees introduced evidence to the effect that contemporaneous with the execution of this contract the appellant was informed that Max Newton Walters was a minor and that if he should, as he afterwards did, decline to consent to the sale of the land, the contract should be of no force and effect. It will not be necessary for us to decide whether this evidence was admissible, and, if so, what its effect would be, for the Court's decree is clearly right without reference thereto. No decree could have been rendered against Max Newton Walters, who was not only a minor but was not a party to the contract for the sale of the land, and the court below was without power to specifically enforce Mrs. Bush's agreement to obtain a deed to the appellant through the chancery court to this minor's interest in the land.

But the appellant says that he is entitled to a decree directing Mrs. Bush to convey to him her one-half interest in the land with such abatement of the purchase price as may be just, citing Wilson v. Cox, 50 Miss. 133, in support thereof. It does not appear in that case that the vendee knew when the contract to convey the land was made that the vendor had no title to and could not convey a portion thereof, and in a later case (Chapman v. Lott, 144 Miss. 841, 110 So. 793) this Court held that when the vendee had such knowledge he is not entitled to a decree directing the vendor to convey to him that part of the land or interest therein to which the vendor has title. This holding finds ample support in authorities elsewhere, as will appear from 58 C.J., Specific Performance, secs. 56 and 59; 49 Am. Jur., Specific Performance, sec. 106; Annos. to Eppstein v. Kuhn, 10 L.R.A. (N.S.), at page 119.

The decree of the court below must therefore be and is affirmed.

WILLIAMS v. BUSH et al.

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