Opinion
No. 30756.
October 23, 1933.
1. EVIDENCE.
Parol evidence is admissible to prove what "other considerations" are in deed for recited consideration of one dollar and other considerations, in suit to subject land to vendor's lien for unpaid purchase money.
2. VENDOR AND PURCHASER.
Unpaid purchase money gives rise to enforceable equitable vendor's lien independent of contract (Code 1930, section 3343(c).
APPEAL from Chancery Court of Jasper County.
O.M. Oates, of Bay Springs, for appellants.
It is the contention of the appellant that to enforce this bill of complaint for specific performance under the terms of these pleadings would be a vicious attack upon the statute of frauds.
Section 3343 of Mississippi Code of 1930, among other things, provides that all contracts in relation to land must be in writing and signed by the parties to be charged.
Kervin v. Biglane, 110 So. 232; Nickerson v. Fifthian Land Co., 80 So. 1, 118 Miss. 722; Howie v. Swaggard, 107 So. 556, 142 Miss. 556; Fisher v. Kuhn, 54 Miss. 480; McGuire v. Stevens, 42 Miss. 724; Willis v. Ellis, 53 So. 498, 98 Miss. 197; Washington v. Soria, 73 Miss. 673, 19 So. 485; 11 Decennial (2 Ed.), Frauds Statute, par. 113.
In the case at bar appellees are seeking to enforce specific performance and establish a lien on the land and to supply terms and conditions, by parol testimony, to a written warranty deed complete within itself, after the execution and delivery of the land deed upon which this suit is brought; and they are asking the court to supply terms and conditions which they say were preliminarily agreed upon by the parties prior to the execution of the land deed to each other.
Specific performance will be denied where the consideration for the agreement is left in doubt and uncertainty.
25 R.C.L. 207, par. 9; Box v. Stanford, 13 S. M. 93; Strum v. Dent, 107 So. 277, 141 Miss. 648; Nickerson v. Fifthian Land Co., 80 So. 1, 118 Miss. 722; Reed v. Howell, 118 So. 208; Swalm v. Gill, 118 So. 446; Welch v. Williams, 37 So. 561; Fowler v. Nunnery, 89 So. 156; Marks v. Gates, 2 Alaska, 519; Riverside Land Irrigation Co. v. Swayer, 134 P. 1011; Castevens v. Castevens (Ill.), 81 N.E. 709; King v. Prospect, 126 Md. 213; Goff v. Jacobs (Miss.), 145 So. 728; Pieri v. Sevier (Miss.), 145 So. 97; Southern Railroad Co. v. Franklin, 96 Va. 693, 32 S.E. 485, 44 L.R.A. 297, 299; Ballard v. Brown, 46 So. 137, 93 Miss. 104; Boner v. Canady (Miss.), 30 So. 638; 6 R.C.L. 857.
Prior negotiations could not be considered to determine understanding of parties to a written land contract.
Goff v. Jacobs, 145 So. 728, 729, 730; Allen v. Bennett, 8 S. M. 672.
Parol evidence to explain or to aid the instrument of writing was not admissible under the statute of frauds.
Box v. Stanford, 13 S. M. 93; Milan v. Paxton (Miss.), 134 So. 171; McGuire v. Stevens, 42 Miss. 730.
For this court to endeavor to enforce a vendor's lien on this property, would be to create a remedy in strict violation of the law, and would be a vicious indirect attack upon the statute of frauds, and to do something indirectly that one could not do directly.
10 R.C.L., section 132; Griffith, Mississippi Chancery Practice and Pleadings, section 304, p. 306; Section 32, p. 37; Lyons v. Sanders, 23 Miss. 530; Nabours v. Coche, 24 Miss. 44.
J.A. McFarland, of Bay Springs, and W.S. Welch and Ellis B. Cooper, both of Laurel, for appellees.
Where, acting under an oral contract for the transfer of an interest in land, the purchaser with the assent of the vendor (a) makes valuable improvements on the lands, or (b) takes possession thereof or retains a possession thereof existing at the time of the bargain, and also pays a portion or all of the purchase price, the purchaser or the vendor may specifically enforce the contract.
Restatement of the Law on Contracts, section 197, p. 260.
It was the insistence of the appellees in the court below that regardless of the legal situation as to the statute of frauds the sum of one thousand dollars due was due as a part of the purchase price of tract A which appellants received in exchange. In other words, Haden agreed to transfer to Sims for tract A all of tract B and one thousand dollars. This one thousand dollars constitutes a part of the purchase price of tract A and under general principles too familiar for argument complainants have a lien on tract A as security.
Matthews v. Delta Southern Ry., 43 So. 475, 90 Miss. 429.
This court in many cases has held that the consideration of the deed may be shown by parol evidence.
Baum v. Lynn, 18 So. 428, 72 Miss. 932.
The appellee, Ezell Sims, administrator of the estate of J.L. Sims, Jr., deceased, together with the heirs at law of the deceased, exhibited an original bill against the appellants for the specific performance of a contract alleged to have been made by the appellants with the deceased. In substance the bill alleges, among other things, that the deceased and the appellants agreed to exchange land owned by each; the appellants agreeing, as part of the consideration for the exchange, to execute and deliver to the deceased a promissory note for one thousand dollars, secured by a deed of trust on the land which the deceased would convey to them. Deeds were executed pursuant to this agreement; the consideration recited in the deed from the deceased to the appellants being "one dollar and other considerations." The deceased died shortly after the execution of these deeds, and the alleged agreement for the execution of a promissory note and deed of trust from the appellants to the deceased was not executed. The bill prayed for the specific performance of the agreement to execute the note and deed of trust, and concluded with the usual general prayer. Afterwards the bill was amended so as to allege a vendor's lien in the deceased for the unpaid purchase money. A demurrer to the bill was overruled and an appeal granted to settle the principles of the case.
The appellees expressly abandoned any right to the specific performance of the agreement to execute the note and deed of trust, and stand on the right to subject the land to a vendor's lien for the alleged unpaid purchase money therefor.
The two contentions of the appellants are: First, the contract between the parties is that evidenced by the deed from the deceased to the appellants and cannot be varied by parol; and, second, the alleged vendor's lien cannot arise under the statute of frauds, paragraph c, section 3343, Code 1930.
Parol evidence is admissible to prove what the "other considerations" in the deed from the deceased to the appellants are. Blum v. Planters' Bank Trust Co., 161 Miss. 226, 135 So. 353. The alleged agreement to pay an additional one thousand dollars for the land is not inconsistent with the deed's stated consideration of "one dollar and other considerations," and "is such an agreement as might naturally be made as a separate agreement by (the) parties situated as were the parties to the written contract." A.L.I., Restatement Contracts, section 240.
If the agreement to pay the one thousand dollars as a part of the consideration for the conveyance of the land is proven, a vendor's lien therefor arises in equity independent of contract, and is enforceable in a court of equity. Matthews v. Delta Southern R. Co., 90 Miss. 429, 43 So. 475, a case similar in its facts to the one at bar.
Affirmed and remanded.