Opinion
No. 33365.
January 9, 1939. Suggestion of Error Overruled February 20, 1939.
1. SALES.
Where building blocks were inspected, received and accepted by buyers and delivered at place and upon land where contract specified blocks should be delivered and there remained without any affirmative action for a period of more than three years, a complete delivery had been effected by seller so that buyers acquired title.
2. SALES.
Where a contract provides that on delivery of personalty cash is to be paid therefor or that notes are to be executed therefor and where buyer is invested with all the indicia of ownership it becomes duty of seller if he desires to retain title because of buyer's default to assert promptly his right to reclaim property.
3. SALES.
An unreasonable delay of seller in asserting title because of buyer's default will constitute a waiver of seller's right to reclaim property.
4. SALES.
A seller has right to demand that terms of sale be complied with by buyer.
5. SALES.
Where contract for sale of building blocks provided for execution of notes, seller had right to demand that note be properly executed and on buyer's default could have retained title to the blocks by asserting right promptly.
6. SALES.
Where contract for sale of building blocks required buyers to execute purchase-price notes, seller had right to let title pass to buyers and retain his written contract as evidence that he had a purchase price lien in the amount thereof.
7. SALES.
Where contract for sale of building blocks provided for buyers' execution of purchase-price notes at time of seller's delivery of blocks, seller had right to elect to promptly reclaim his property as his own because of buyers' failure to execute notes, but seller failing to reclaim property for more than three years forfeited right to claim title to blocks.
8. EQUITY.
Bill which prayed for enforcement of purchase-money lien on building blocks sold by plaintiff and in alternative, if court found that plaintiff had not parted with title to blocks, for recovery as for a conversion for value of blocks converted by defendants, was not inconsistent so that where plaintiff had failed to prove that he had not parted with title, he was entitled to trial on issue regarding whether lien for purchase money could be enforced (Code 1930, section 2239).
APPEAL from the circuit court of Forrest county; HON.W.J. PACK, Judge.
Hannah Simrall, of Hattiesburg, for appellant.
This appellee, after making delivery of the blocks in accordance with his written contract, made no demands and took no action whatever with reference thereto for a period of more than three and one-half years, and not until this appellant had bought some of these blocks.
This appellant timely objected to the contract between appellee and the Daughdrills, or any testimony with reference thereto, being offered, particularly on the ground that the description of the property as contained in the contract was utterly and absolutely void.
National Foods, Inc. v. Friedrich, 137 Miss. 717, 163 So. 126; Garmon v. Fitzgerald, 168 Miss. 532, 151 So. 726.
We respectfully submit that the recordation of the contract in the land deed records of Forrest County cannot possibly provide any constructive notice to anybody with reference to a purchase money lien on personal property, even if the description therein had been sufficient. Most assuredly, such a recordation provides no notice where the description is so wholly inadequate as in the case at bar.
The claim which the appellee in this case seeks to enforce arises by reason of a contract that he made with H.C. Daughdrill now deceased.
Even though this appellee may not be seeking to establish a claim against the personal representatives of the deceased, he is seeking to establish a claim against property that his sworn bill of complaint shows passed to the deceased prior to the time of his death; and, furthermore, if the appellee can establish his claim as against this property, it would in turn give rise to a claim by this appellant against the said estate.
Jacks v. Bridewell, 51 Miss. 881; Jackson v. Smith, 68 Miss. 53, 8 So. 258; Gibson v. Herrin, 118 Miss. 1, 78 So. 946; Jackson v. Johnson, 126 Miss. 26, 88 So. 410.
If there should be any basis for concluding that the title to this property did not pass from appellee but remained in him at all times, then we say that the appellee cannot recover in this case because of the provisions of section 3345 of the Mississippi Code of 1930.
Appellee parted with the possession of this property on and prior to the week of June 2, 1932, and he made no demand for the possession of the same and took no action with reference thereto until the month of January, 1936, some three and one-half years.
The sworn allegations of the bill of complaint and the admissions of the answer of this appellant foreclosed every question about the title of the property having passed from appellee and having vested in the Daughdrills, and having passed from the Daughdrills to this appellant. Furthermore, in view of these allegations of fact, as facts, and the oath of the appellee to these facts, the prayer for alternative relief was an absolute nullity.
Griffith's Chancery Practice, sections 179 and 180.
Certainly, the trial court could not find in the case at bar that the title had not passed from the appellee without testimony to disprove the sworn allegations of appellee's own bill of complaint. And, on the other hand, when the appellee swore to facts showing the passing of the title and this appellant, by his answer, admitted said facts, the trial court could not, under a prayer for alternative relief, receive or accept any evidence that the title had not passed.
E.J. Currie, of Hattiesburg, for appellee.
In the instant case the recorded instrument was sufficient to put the appellant and all the world on notice, because it tied these particular brick tile building blocks to a designated location. We submit that even a mortgage on a cotton crop or a corn crop or a cane crop or a potato crop is perfectly good in Mississippi if the land upon which such crop is located is correctly described.
The proof in this record shows conclusively that there were no other brick tile building blocks upon the lands described like the blocks of the appellee, and there is substantial evidence that there were no other brick tile building blocks on these lands except the blocks of the appellee.
But we submit that the sufficiency or not of the description of appellee's property in the recorded instrument is not material here, because the undisputed proof showed conclusively, and the trial court found as a matter of fact that the absolute title to these particular brick tile building blocks was at all times vested in the appellee Smith — that the question of a lien or encumbrance was not involved. The statutes of Mississippi do not require that the title to personal property shall appear of record, and no provision is made by the Mississippi statutes for recording evidences of absolute titles to personal property.
Harrison v. Broadway Motor Co., 128 Miss. 766, 91 So. 453.
The appellant, in no event, could have availed himself of any defective notice or lack of notice. He had actual knowledge.
The statute, section 1529, Mississippi Code, 1930, provides that "A person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person, which originated during the lifetime of such deceased person, or any claim he has transferred since the death of such decedent." The statute was never intended to and does not cover a state of facts like those involved in the case at bar, and as we construe the decisions of this Honorable Court it has uniformly and repeatedly so held.
Garner v. Townes, 134 Miss. 791, 100 So. 20.
The estate of H.C. Daughdrill, deceased, was not a party to the suit. The record in this cause, both the pleadings and the undisputed testimony, shows that H.C. Daughdrill had divested himself of all right, title, or interest in the property involved.
A contention made by the appellant is that "The property involved in this lawsuit was delivered by the appellee during the months of March to June, 1932, and no demand or other action for its possession was taken until January, 1936 — more than three years — and, therefore, section 3345, Mississippi Code of 1930, is applicable." The section just referred to is a part of chapter 64, Mississippi Code, 1930, relating to the statute of frauds. We respectfully submit that the appellant would be precluded from relying upon the statute of frauds even if the statute was applicable to the facts in the case at bar, because, we submit, the statute of frauds must be specially plead when relied upon as a defense, and must be invoked in the trial court.
Shinault v. Shinault, 112 So. 593.
It is respectfully submitted that every principle of law is in favor of the appellee. If we substitute the brick tile building blocks of the appellee for the fertilizer of the appellee in the case of Finney v. Cullman County Farm Bureau, 117 So. 189, it is respectfully submitted that the latter case will be on all fours with the case at bar.
Bennett v. Brooks, 41 So. 149; Barrow v. Brent, 81 So. 669.
The contract was still executory, even after the blocks had been delivered to the Daughdrill lands because there was yet something to be done by the Daughdrills under and by virtue of the "Agreement." An essential part of the "Agreement" was that promissory notes for the purchase money "will be executed by the said Mr. and Mrs. Daughdrill in favor of the said Luther A. Smith immediately upon the delivery of the said material." Until these notes were executed the title to the blocks did not pass to the Daughdrills.
55 C.J. 572, section 578; Young v. Kansas Mfg. Co., 2 So. 817; 13 L.R.A. (N.S.) 697; 29 L.R.A. (N.S.) 709; 23 R.C.L., sections 207, 208 and 209; Hazlehurst Lbr. Co. v. Fay Eagan Co., 18 So. 485.
We respectfully submit that the authorities are practically unanimous in holding that under facts as shown in this record, the title to the property does not pass to the vendee until the promissory notes are executed. Therefore, it would make no difference, under practically all the authorities, how long the blocks remained on the land where they were delivered. See Shinault v. Shinault, 112 So. 593. As between the vendor and vendee the title would never pass until the conditional sales contract was performed.
The court will of course bear in mind that this controversy is not between the vendor and the vendee, the Daughdrills, but between the vendor and a third party, who does not stand in the position of a bona fide purchaser. He makes no claim that he occupies any such position, nor could he, because the right or title he claims came through Harry Fields, who openly and frankly swore that he did not claim to have any right or title to the property.
Appellant could not stand in the relation of an innocent purchaser for the additional reasons, first, that the testimony shows that he had actual knowledge of the statute of the affairs between Smith and the Daughdrills and, second, because the contract between Smith and the Daughdrills was on record.
For the above reasons, therefore, Mr. Smith's delay in removing the blocks from the lands owned by the Daughdrills could not result in any benefit whatever to appellant Morris. Insofar as he is concerned the situation would be the same as if he had removed the blocks from Mr. Smith's own land. He could not claim any protection whatever, either in law or in equity, as against the paramount title of Smith to the blocks.
Mr. Smith had a right to let the blocks remain where they were delivered if he so wished. The Daughdrills had abandoned them. The record shows that they immediately sold the land to Lyda E. Daughdrill, and utterly abandoned the building blocks, refusing to execute the notes or to build the building. We call the court's attention to the nature of the property in question according to the record, especially the exhibit to the bill of complaint which shows that there were 5800 of these concrete blocks and that they weighed 232,000 pounds, or 116 tons, and further that it cost Mr. Smith $72.50 to haul the blocks from his plant to the Daughdrill's place near Estabutchie. It was no easy task therefore to get these blocks back to Mr. Smith's plant and it was very expensive. Mr. Smith explained in his testimony that he decided to leave them there until the depression was over and there was a better market for this building material.
Argued orally by T.C. Hannah, for appellant, and E.J. Currie, for appellee.
In February, 1936, Luther A. Smith, appellee, filed his bill in the nature of discovery against Mrs. L.M. Daughdrill, Lyda E. Daughdrill, Dorothy Daughdrill Fields, Harry Fields, W.J. Morris, Frank Gains, and R.R. Guice, in which he alleged that by virtue of a certain written contract exhibited with the bill, he had sold to Mrs. L.M. Daughdrill and her husband, H.C. Daughdrill, 5800 building blocks, or brick tile building material, and had delivered same upon the premises described in the written contract of the Daughdrills for 13 1/2c per block, and one-half price for the broken tile. Said written contract was promptly recorded in the land deed record books of the county.
The bill further charged that between April 2, 1932, and June 4, 1932, L.M. and H.C. Daughdrill inspected, approved, and accepted 5800 of said brick tile building blocks, and that he complied with his contract by delivering said 5800 brick tile building blocks upon the premises of the Daughdrills, and that the Daughdrills breached said contract in that they failed and refused to execute and deliver their promissory notes, evidencing the purchase price thereof, and failed to construct a building, as provided by the contract, and that they failed to pay the purchase price. After the execution and delivery of the contract, and after the inspection, approval, acceptance, and delivery of the building blocks, H.C. Daughdrill died, leaving as his sole heir, Mrs. L.M. Daughdrill, his wife.
The bill further charged on information and belief that after the execution and delivery of the written contract, and a recordation thereof, and after the delivery of the personal property upon the premises described in the contract, and after the breach of the terms thereof, and after the abandonment thereof by Mrs. L.M. Daughdrill, that about January 26, 1934, Mrs. Daughdrill conveyed the aforesaid premises to Lyda E. Daughdrill, by deed recorded in the land deed records, and delivered the possession of the aforesaid personal property to the said Lyda E. Daughdrill with full notice of the rights and interests of the complainant in the personal property.
The bill alleged that subsequently Lyda E. Daughdrill likewise conveyed the premises to Dorothy Daughdrill Fields. The bill charged then that the personal property was delivered by Dorothy Fields to her husband, Harry Fields. It then charged that these building blocks in quantities unknown were sold by Harry Fields to W.J. Morris, Frank Gains, and R.R. Guice, and that each of the several parties bought with notice of his rights and interests in the building blocks. He asserted that under Section 2239, Code of 1930, he had a lien for the purchase money on the blocks and that the several defendants had notice that the purchase money had not been paid and asserted a purchase money lien upon the number of blocks bought by each of the defendants from Harry Fields, and that the value thereof was 13 1/2c per block, and that he was entitled to enforce a lien as against each of the purchasers of the blocks from Harry Fields to the extent of their purchases.
He then further alleged that if the court should hold upon the facts, and the construction of the contract, that he had never parted with the title to the blocks in question, then, in that event, he was entitled to recover as for a conversion from the several defendants for the value of the blocks converted by them. Questions were then propounded to the several defendants as to the number of blocks, the extent of interest claimed by each of them in the blocks, and by what right Fields sold the blocks.
The bill prayed for relief in the alternative, that in the event the court held that he had parted with the title to the blocks to L.M. and H.C. Daughdrill, then he was entitled to enforce a purchase money lien against each of the parties who had converted the blocks with notice, both actual and constructive, of his rights, or, in the event the court held that he had parted with the title to L.M. and H.C. Daugdrill, then that he be allowed to recover from each of the parties for the value of the blocks alleged to have been converted by them.
The answer of the appellant, Morris, in effect, admitted the allegations of the bill as to the written contract, and as to the delivery on the premises described in the contract of 5800 blocks, and specifically admitted that the Daughdrills had inspected and accepted the blocks and admitted the several conveyances as alleged in the bill. The bill and answer show that H.C. Daughdrill had died prior to the time Mrs. L.M. Daughdrill executed the deed to Lyda E. Daughdrill. Morris denied that the purchase money had not been paid, or that the Daughdrills had breached their contract with Smith. They denied any notice, actual or constructive. The separate answers of Guice and Gains were practically to the same effect as the answer of Morris. Mrs. Dorothy Fields and her husband answered, the main feature of their answer being that they denied that L.M. and H.C. Daughdrill had inspected, approved, and accepted, the blocks in controversy, denied that Smith had complied with his contract by the delivery of the blocks, and denied that the L.M. and H.C. Daughdrills had breached their contract, that they averred that the Daughdrills never inspected, or accepted the blocks, and alleged that the blocks tendered were utterly and wholly unfit for the purpose for which they had agreed to purchase them. They, as well as all other defendants, denied that the contract they had recorded constituted any notice to them, or to any of them, of the claim of Smith.
The county court decreed that the title to the blocks in controversy had never passed from Smith to L.M. and H.C. Daughdrill, and there was no controversy as to the number of blocks received by each of the defendants named in the bill their purchase from Harry Fields, and rendered judgment against each of the parties for the number of the blocks and the value thereof as testified to by Smith. From that decree all of the defendants prosecuted an appeal to the circuit court, where the case was affirmed, and a decree entered by the circuit court holding liability upon the principal, appellants, and the sureties on the appeal bond, from which decree appeal is prosecuted here by Morris.
The evidence of the appellee, Smith, was to the effect that H.C. Daughdrill, in his lifetime, and Mrs. L.M. Daughdrill never executed the notes provided for in the written contract in payment for the blocks, and that they never constructed the building. They never paid for the blocks. He said that they had abandoned the contract, resting on that bare statement. Presumably he meant by this that they had never executed the notes or constructed the building provided for in the contract. All of his evidence was objected to on the ground that he was incompetent as a witness against the estate of the deceased, H.C. Daughdrill. He testified that the blocks in controversy were the blocks which he had sold and delivered from his plant, on the land described as being owned by the Daughdrills, to them. He never testified to any conversation between him and L.M. and H.C. Daughdrill. He never testified that he exercised any acts of ownership or notified any of the several grantees, which we have named, or any of the purchasers that he claimed title to the blocks until after they were sold to the several parties.
Fields testified that the blocks were scattered over the land to the extent that he could not rent it to a tenant, and that there were other blocks than the tile blocks claimed by Smith, and that some kind of wall had been attempted to be constructed by the use of some of the blocks. He further testified that he "signified" to the purchasers of the blocks from him that his wife was the owner thereof, and that he and his wife had used the proceeds of the sale of the blocks for family purposes. When examined by appellee as to his averment that the Daughdrills had abandoned the contract, he admitted that he had no personal knowledge as to that allegation, but that it had been his understanding in the family. He stated that Smith had never said anything to him about the blocks until after these several sales, the one by Harry Fields to Morris being about November 26, 1935.
The decree of the court below that the title had never passed from Smith, the appellee, to H.C. Daughdrill and wife, can be based only upon the theory that the failure of the Daughdrills to execute the two notes provided for in the written contract in favor of Smith, payable at different dates, and the failure to erect a building constituted an abandonment of the contract. We cannot assent to this conclusion. Smith, in his bill, alleged under oath of his own knowledge that the blocks in question were inspected, received, and accepted by the two Daughdrills and delivered into their possession at the place, and upon the land where the contract specified they should be delivered, and there remained without any affirmative action by word or deed from June 4, 1932, until subsequent to November 26, 1935, a period of more than three years. This was admitted by the answer of Morris, and, in our opinion, a complete delivery having been effected by the seller, the buyer on account of the conduct of Smith became invested with the title. By his own act he invested H.C. Daughdrill and wife with every indicia of ownership, of which the personal property in question was susceptible. For his own convenience, and to save expense, he allowed the blocks to remain in their possession and in the possession of the subsequent grantees without ever, during a period of more than three years, asserting any right or claim to the blocks. He allowed the contract, which perhaps was intended to establish a materialman's lien, or a purchase money lien, to remain uncancelled on the record. Where a contract provides that on delivery of personal property after the buyer obtains possession, that cash is to be paid therefor, or that notes are to be executed therefor, and where the buyer is invested with all the indicia of ownership it becomes the duty of the seller, if he desires to retain the title to the property, to assert promptly his right to reclaim the property; an unreasonable delay on his part in so doing will constitute a waiver of his right to reclaim. This rule which is wholesome and salutary seems to be generally recognized by the courts of this country. The rule further is that an unreasonable delay on his part in asserting his claim of title will constitute a waiver of his right to reclaim, and certainly in this case more than three years was an unreasonable delay. In fact in most of the cases we have had occasion to examine, a very short time is regarded as unreasonable. See R.C.L., p. 1388, sec. 211.
Of course, the seller has the right to demand that the terms of the sale be complied with by the buyer. He had a right to demand that the notes be promptly executed and could have retained title to the property if he had acted in accordance with that view and pursued that course, but he chose his course. He had the right to let the title pass to the buyers and retain his written contract as evidence that he had a purchase money lien in the amount thereof, or he had a right promptly to demand that the notes be executed and in some manner demonstrate that he reclaimed the property as his own. On his view he either had a purchase money lien, or he had the title to the property. He could not hold on to both. He must surrender one or the other. At the time of the delivery of this property, he had the right to elect to promptly reclaim the property as his own. On a failure so to do, the rule is that he has forfeited his right now to claim title to the property. He allowed them and their successors and grantees, so far as everyone in the world could say, to retain possession and abandoned ownership of the personal property. If this contract had stipulated that cash was to be paid promptly on delivery of the property, then he must immediately act if he desired to retain title to the goods. On the other hand, a reasonable time will be allowed where notes are to be executed. The situation of the parties in this case, as disclosed by this record, shows that he did not exercise his right to claim the title to the property within a reasonable time. He must exercise such right as promptly as the situation of the parties and the circumstances of the case will allow.
The decree of the court below vesting the title of this property in the appellee, and allowing him to recover for the conversion of the property was erroneous.
It is clear that there was no inconsistency in the alternative prayer of the bill, and, as the case now stands, there can be no complication in the pleadings and as to the appellant, Morris, and appellee, Smith, the issue is as to whether the lien for a purchase money can be enforced as against Morris in favor of Smith. And, in view of the fact that the evidence was not addressed to this issue, we think there should be a trial thereof in the court below as the circuit court should have reversed the decree of the county court.
The interesting questions as to whether the description of the property in the written contract and the evidence in support of it is sufficient to identify it, and the question of whether or not appellee is a competent witness against the estate of H.C. Daughdrill, his wife still being alive, is one that has not been decided by this Court, and we prefer to pretermit a discussion thereof until the case is fully presented. The record discloses, in our opinion, that there are living witnesses who can be offered in person or by deposition as to the facts of this case on the question of a lien for the purchase money. Obviously it does not follow that because the Fields did not assert title, that therefore Smith had title. The conclusion we have reached is that the title to this personal property either passed with the several conveyances or it remains in Mrs. L.M. Daughdrill, and the estate of H.C. Daughdrill, who were coparties to the contract with Smith.
The case will be remanded to be proceeded with in accordance with this opinion.
Reversed and remanded.