Opinion
No. 32868.
November 1, 1937.
APPEAL AND ERROR.
A decree overruling demurrers to bill was affirmed and cause remanded on appeal, allowed to settle controlling legal principles, where record disclosed situation in which justice would probably be promoted by determination of parties' ultimate rights only on answer and proof in exercise of fair judicial discretion, though grounds of demurrer might be technically sustainable.
APPEAL from the chancery court of Lafayette county. HON. L.A. SMITH, SR., Chancellor.
L.C. Andrews and James Stone Sons, all of Oxford, for appellant.
Appellee has no action for specific performance because there was no acceleration clause in the contract between E.E. Temple and appellant and this suit was filed before the last installment was due by appellant Douglass.
May v. Sullivan, 37 Miss. 541; Griffith's Chancery Practice, page 59, sec. 58.
It is not possible for appellee to cure such defect by amendment because, the original bill having been prematurely filed, there is no action that can be amended.
Brooks v. Spann, 63 Miss. 198.
There was no tender of deed sufficiently made by appellee, and none sufficiently alleged, to enable appellee to maintain this suit against appellant.
Klyce v. Broyles, 37 Miss. 524; Morton v. Varnado, 127 Miss. 332, 90 So. 77.
Appellee cannot maintain this suit against appellant because appellee could not tender a valid warranty deed conveying a merchantable title in accordance with the terms of the contract between E.E. Temple and appellant.
58 C.J., 1116, sec. 413; 27 R.C.L. 520, sec. 249; McGovern v. Hern, 153 Mass. 308, 10 L.R.A. 815, 25 A.S.R. 632, 16 N.E. 86.
The decree of the lower court should be reversed, the demurrers sustained, the bill dismissed and judgment entered here for appellant Douglass.
It is a fundamental rule of procedure that the pleader must state facts.
Section 373, Code of 1930.
The rule is strict in suits for the specific performance of contracts.
Griffith's Chancery Practice, page 563; Robinson v. Harbour, 42 Miss. 795.
It is necessary for appellee (Complainant) to show in his bill as a condition precedent to bringing suit, a strict tender to appellant Douglass, of the warranty deed, not of complainant, but of complainant's assignor, E.E. Temple. This the complainant has failed to do. The bill is not specific, is vague, and states no more than a conclusion that at some time a tender was made.
C.A. Bratton and Sam V. Pack, both of Oxford, for appellee.
Such a cause of action as appellee here presents was presented to this court in Waters v. Bossell, 58 Miss. 602.
The rule is well settled that an executory contract for conveyance of the title at a future date has all the incidents of a mortgage. Retention of title by the vendor does not destroy his right to a lien for the purchase money.
66 C.J. 1218; Dodge v. Evans, 43 Miss. 570; Vanderspeck v. Federal Land Bank, 175 Miss. 759, 167 So. 782.
Appellant does not dispute appellee's rights under fundamental principles of equity and justice, but grounds his appeal solely on contentions that there are certain technical objections which should preclude appellee from the relief he seeks, irrespective of the fundamental principles involved.
An examination of the record shows that there was due on the former installments, at the time the original bill was filed, the sum of approximately twenty-five hundred dollars, principal and interest. On elementary principles, it can hardly be disputed that appellee had a cause of action for that amount.
Furr v. Morgan, 55 Miss. 389.
The sole question is whether the suit was premature as to the last installment and, if premature, is appellee's cause defeated thereby. Principles of general jurisprudence and the procedural law of our own state concur in a negative answer.
58 C.J., 1120; May v. Sullivan, 37 Miss. 541.
Appellee submits that even if no amendment had been filed, the decree of the lower court would have included in its amount the last installment, just as in suits to enforce mortgage liens which the Waters case ( 58 Miss. 602) points out are fundamentally like the case at bar.
Griffith on Chancery Practice, page 428; Magruder v. Eggleston, 41 Miss. 284.
Appellant's third contention is that there was no tender of deed sufficiently made by appellee and none sufficiently alleged to enable appellee to maintain this suit. Appellee earnestly submits that in the present case it is highly doubtful whether any tender at all was required.
Griffith, Chancery Practice, page 565.
Where the purchase money is to be paid first, though on the same day, the vendor is not bound to tender a title to enable him to sue; it were sufficient if he were ready and able to make title.
Bright v. Rowland, 3 H. 398; Robinson v. Harbour, 42 Miss. 795.
Equity does not in all cases require a complainant seeking to enforce performance to show a performance on his part, or even an ability to perform literally; he must show that he has not been in default, and that he has taken all proper steps toward performance on his part.
McCorkle v. Brown, 9 S. M. 167; Hodges v. Moore, 102 Miss. 532, 59 So. 827.
On the question of warranty, we conceded that if there should be in the contract a personal element, then the question of who is making the warranty would have probative value; but in reading the contract in this case, it will be found that the thing which appellant was buying and should get for his money was "a good and merchantable title" to the 122 acres of land contained in the contract. If the question of who was making a warranty should be involved, the only pertinent matter to be inquired into would be whether or not the warrantor was solvent or insolvent. This, we respectfully submit, would be a question of fact for the court to determine under the pleadings from the evidence, and not a question of law to be raised by a demurrer.
Sections 505 and 2853, Code of 1930; 58 C.J., pages 913, 915 and 1134; 66 C.J. 1065, 1066.
The general and special demurrers to the bill were overruled by the court and properly so, and an appeal was allowed to settle all the controlling principles of law. An examination of the record discloses a situation in respect to which "justice will probably be promoted by a determination of the ultimate rights of the parties only on answer and proof" and wherein the "court ought to exercise a fair judicial discretion to that end, although it may be that in technical point, the grounds of the demurrer are sustainable in strict law." Federal Land Bank v. Fidelity, etc., Co., 165 Miss. 715, 720, 721, 147 So. 917, 918.
It may be well contended that in such a case no interlocutory appeal should be allowed or entertained; for instead of there being presented thereby a full development of the case so that all the controlling principles of law in the case may be decided by us, there will probably be other points brought in by answer or amendments on remand, and thus other principles to be settled on a second appeal, causing expense and delay instead of preventing them. We do not dismiss the appeal in this case, but reserve the point and the right to dismiss when subsequently an interlocutory appeal has been granted in a case presenting a situation such as is here before us.
Affirmed and remanded.