Opinion
No. 41077.
March 16, 1959.
1. Mortgagee — injunctions — specific performance — evidence — insufficient to grant relief sought in suit by purchasers of dwellings to enjoin foreclosure by holders of prior deed of trust on the land and to require specific performance by assignee of terms of dwelling construction contracts.
In suit by purchasers of dwellings to enjoin holder of prior deed of trust on the land from foreclosing his deed of trust until assignee of dwelling construction contracts had fulfilled terms of the contracts and to compel assignee to fulfill the terms of construction contracts, the evidence was insufficient to warrant the granting of relief sought.
Headnote as approved by Gillespie, J.
APPEAL from the Chancery Court of Harrison County; WILLIAM G. HEWES, Special Chancellor.
Gardner Gardner, Jo Drake Arrington, Gulfport, for appellants.
I. The Court in its opinion erred in failing to adjudicate that the contracts were valid.
II. The Court erred in ruling that the contracts were unenforceable because there was no meeting of the minds on the procuring of the Veterans Administration financing.
III. The Court erred in ruling that the contracts were unenforceable because they were impossible of performance.
IV. The Court erred in failing to rule that the instruments upon which this suit is based were prepared by attorneys for the appellees and should be construed most strongly against them.
V. The Court erred by ruling in effect that the contracts were without consideration because the appellants put no money into the transaction and because their obligation was contingent upon completion of the houses involved and negotiation of financing.
VI. The Court erred in failing to adjudicate the Hogue Lumber Supply Company of Gulfport, Inc. was liable for performance of the contracts executed by the appellants with B.E. Gibson, either as the real party in interest or as assignee.
VII. The Court erred in failing to rule that the appellee, Hogue Lumber Supply Company of Gulfport, Inc. was not an innocent purchaser for value of the promissory notes executed by the appellants and the deeds of trust by which they were secured.
VIII. The Court erred in failing to adjudicate the appellee, Webb, had no right to foreclose prior to discharge of all duties owed the appellants under the contracts by the Hogue Lumber Supply Company of Gulfport, Inc.
IX. The Court erred in failing to adjudicate the appellants could not be in default prior to performance by the Hogue Lumber Supply Company of Gulfport, Inc.
X. The Court erred by its failure to rule that the houses covered by the contracts between the appellants and the appellee, Hogue Lumber Supply Company of Gulfport, Inc. should be completed and restored to the appellants.
XI. The Court erred in failing to rule that the appellants are entitled to recover from the appellees, Webb and Hogue Lumber Supply Company of Gulfport, Inc., all damages sustained by the appellants as a result of the wrongful foreclosure of their homes and the loss of the use and enjoyment thereof.
Collation of authorities: American Bankers Insurance Co. v. White, 171 Miss. 677, 158 So. 346; American Oil Co. v. Ratliff's Sheet Metal Works, 155 Miss. 779, 125 So. 249; Biles v. Webb, 195 Miss. 369, 15 So.2d 362; Citizens Lumber Co. v. Netterville, 137 Miss. 310, 102 So. 178; Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 178 So. 914; Guay v. Brotherhood Building Assn. (N.H.), 177 A. 409, 97 A.L.R. 1053; Kastner v. Beacon Oil Co., 114 Conn. 190, 158 A. 214, 81 A.L.R. 17; Ladner v. Hogue Lbr. Supply Co., 229 Miss. 505, 91 So.2d 545; McClendon v. Miss. State Highway Comm., 205 Miss. 71, 38 So.2d 325; Martin v. Dixie Planing Mill, 199 Miss. 455, 24 So.2d 332; Miss. Power Light Co. v. Pitts, 181 Miss. 344, 179 So. 363; Piaggio v. Somerville, 119 Miss. 6, 80 So. 343; 38 U.S.C.A., Sec. 694, et seq.; Sec. 43, Code 1942; 5B C.J.S., Appeal and Error, Secs. 1824, 1834, 1964; 17 C.J.S., Contracts, Secs. 294, 296, 319, 324, 459, 565; 25 C.J.S., Damages, Sec. 43; 30 C.J.S., Equity, Sec. 604; 32 C.J.S., Evidence, Sec. 851; 49 C.J.S., Judgments, Sec. 50; 59 C.J.S., Mortgages, Sec. 491; 74 C.J.S., Quieting Title, Sec. 140; 81 C.J.S., Specific Performance, Sec. 26(b); Griffith's Miss. Chancery Practice, Secs. 28, 567.
Donald O. Simmons, Frank W. Alexander, Gulfort, P.H. Carrubba, Long Beach, for appellees.
I. The reviewing court begins its examination of every case brought before it with the presumption of the validity and regularity of the judgment of and the proceedings in the court below, placing the burden upon the appellant to show errors therein. Biles v. Webb, 195 Miss. 369, 15 So.2d 362; Brewer v. Browning, 115 Miss. 358, 76 So. 267; Daniels v. Bush, 211 Miss. 1, 50 So.2d 563; Gulf S.I.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144; Lewers Cooke v. Atcherly, 222 U.S. 285, 56 L.ed. 202, 32 S.Ct. 94; Mississippi Power Light Co. v. Pitts, 181 Miss. 344, 179 So. 363; Walker v. Saunders, 1 Miss. 57 ; 3 Am. Jur., Appeal and error, Secs. 923, 924, 985, 989; 5B C.J.S., Appeal and Error, Sec. 1834; Griffith's Miss. Chancery Practice, Secs. 567, 589; Servicemen's Readjustment Act, 38 U.S.C.A., Secs. 694, et seq.
II. The Chancellor was correct in ruling that the contracts were unenforceable because there was no meeting of the minds on the procuring of the Veterans Administration financing. Ligon v. Phillip Schalansky Bros., 208 Miss. 139, 43 So.2d 881; Supreme Lodge Knights of Pythias v. Stein, 75 Miss. 107, 21 So. 559; Griffith's Miss. Chancery Practice, Sec. 614.
III. The Lower Court was correct in ruling that the contracts were unenforceable because they were impossible of performance. Bomar v. Canady, 79 Miss. 222, 30 So. 638; Gulf S.I.R. Co. v. Horn, 135 Miss. 804, 100 So. 381; Hadad v. Booth, 225 Miss. 63, 82 So.2d 639; Morse v. Tillotson Woolcott Co., 1 A.L.R. 1485; Walker v. Saunders, supra; 12 Am. Jur., Contracts, Sec. 365 p. 933; 41 Am. Jur., Pleading, Sec. 144 p. 390; A.L.I. Restatement of the Law (Contracts), Secs. 267, 277, 281; 3 Williston on Contracts, pp. 1912-1915.
IV. All of the instruments upon which this suit is based were prepared by the attorney for the appellants and should be construed most strongly against them. Bomar v. Canady, supra; Ladner v. Hogue Lumber Supply Co. of Gulfport, 229 Miss. 505, 91 So.2d 545; 5 C.J., Assignments, Sec. 169 p. 976.
On the first appearance of this case, it was held that the bill of complaint stated a cause of action and we reversed the case and remanded it for a trial on the merits, 91 So.2d 545. On remand, a lengthy hearing was had and the chancellor then entered a decree denying the relief sought by complainants and dismissed the complaint. (Hn 1) After a careful review of the evidence adduced at the hearing on the merits, and after consideration of the several assigments of error, we are of the opinion that the chancellor correctly denied the relief sought by complainants.
Affirmed.
McGehee, C.J., and Hall, Lee and Ethridge, JJ., concur.