Summary
In Milam v. Paxton, 160 Miss. 562, 134 So. 171, it was held that, vendee under parol contract for the sale of land may recover payments made where vendor refused to complete the transaction.
Summary of this case from Hardy v. CandelainOpinion
No. 29265.
May 12, 1931.
1. FRAUDS, STATUTE OF
Part performance of oral contract for sale of land does not take case out of statute requiring such contracts to be in writing (Code 1930, section 3343).
2. SPECIFIC PERFORMANCE.
In absence of writing identifying land, stating purchase price and terms of payment, vendee under oral contract was not entitled to specific performance (Code 1930, section 3343).
3. VENDOR and PURCHASER.
Vendee under parol contract for sale of land may recover payments made where vendor refuses to complete transaction.
4. LIMITATION OF ACTIONS.
Statute of limitations begins to run against vendee's action to recover purchase money paid only from date vendor declines to execute agreement or takes affirmative action equivalent to repudiation of parol contract.
5. LIMITATION OF ACTIONS. Vendee's suit to recover money paid under oral contract of sale held governed by six-year limitation, in view of receipts (Code 1930, section 2292).
After parties entered into parol agreement to sell land, vendee paid installments on purchase price, for which vendor executed receipts to effect that payments were on account of purchase price of designated property. After first installment was paid, vendor by letter acknowledged receipt of part payment and promised to forward deed as soon as same could be conveniently prepared.
6. EQUITY.
Under general prayer, any relief will be granted which established main facts of bill justify and which does not operate to defendant's surprise or prejudice.
7. EQUITY.
Office of prayer for general relief is to enable court to grant relief which case warrants if complainant has mistaken special relief, or to grant appropriate relief, if specific relief cannot be had.
8. SPECIFIC PERFORMANCE. Under prayer for general relief in vendee's bill for specific performance of oral contract for sale of land, vendee held entitled to recover purchase money paid.
Vendee brought suit for specific performance of contract for sale of land, which rested in parol, but was not entitled to specific performance because contract was oral, notwithstanding part performance. Bill did not specifically pray for return of purchase money if specific performance could not be had, but contained prayer for general relief.
APPEAL from chancery court of Sharkey county; HON. J.L. WILLIAMS, Chancellor.
Brunini Hirsch, of Vicksburg, for appellant.
Where a purchaser of property does not receive what he has bargained for, his right to recover back the purchase price as money paid on a consideration which has failed, accrues at the time when the failure of consideration occurs, and the statute then begins to run. Where the vendor of land receives the purchase money but fails to convey to the purchaser, it is held on the one hand that if no demand is necessary to perfect the purchaser's right to a deed his cause of action to recover back the purchase money accrues at the time the money is paid in full, and the statute then begins to run. On the other hand, it is held that if the contract contains no covenant to convey, and no time for executing the conveyance is fixed by the parties, the cause of action accrues and the statute begins to run only when the vendor does some act in disaffirmance of the contract so as to entitle the purchaser to rescind, or not until a demand for a deed is made.
Where payments are made by a purchaser under a parol contract for the sale of land, the money cannot be recovered back until the vendor is in default, that is, when he elects to disaffirm; and the statute of limitations begins to run only from that date. But when the vendor refuses to execute the contract, the statute begins to run.
37 C.J., page 857.
The statute of limitations began to run on the date when the cause of action accrued. As long as the contract of purchase was in force, the plaintiff could not maintain an action of this nature. Such an action will not lie until the contract has been terminated. But if the contract has been put an end to, the action for money had and received lies, to recover any payment that has been made under it. It follows, therefore, that the statute of limitations does not begin to run against an action for money had and received, when brought for the sole purpose of recovering back a payment made under a contract to purchase land, until the agreement has been rescinded or otherwise terminated.
Thiele v. Carey, 85 Neb. 454, 123 N.W. 442, 133 Am. St. Rep. 679; Elliott v. Walker, 140 S.W. 51; Taback v. Greenberg, 292 P. 279; Bedell v. Tracy, 26 A. 1031; Farmer v. Best, 224 N.W. 399.
Relief must be such as can be afforded on the facts stated, and it must appear that the defendant is fairly appraised by the bill that the relief is sought by the complainant.
Bell v. Clark, 14 So. 318.
Thames Thames, of Vicksburg, and F.L. Wright, of Jackson, for appellees.
Every conveyance of land (and the same is true, of course, of a contract to convey) must define the identity and fix the locality of the land, and this might be done in two ways: First, by a complete description in the writing itself, pointing out directly the subject matter; or second, by reference to something aliunde the writing, pointing with certainty to the property intended to be conveyed; if reference is made to anything outside of the writing in aid of the description of the property, such reference must not be uncertain and doubtful.
Bowers v. Andrews, 52 Miss. 596; Holmes v. Evans, 48 Miss. 247, 12 Am. Rep. 373; McGuire v. Stevens, 42 Miss. 724, 2 Am. Rep. 649; Fisher v. Kun, 54 Miss. 480.
The acceptance of part of the purchase money does not give validity to a parol contract for the sale of land, nor estop the acceptor from refusing to carry out the contract.
Howie v. Swaggard, 142 Miss. 409, 107 So. 556.
The court will not usually permit a bill which is manifestly framed for one purpose, and which prays specially in accordance with that distinct and dominant purpose and theory, to be transmuted on the hearing to another and a different theory and purpose, to the surprise and prejudice of the defendant, even though if the bill in the first instance has been drawn, so as to present the other theory a somewhat similar set of proved facts might have supported it.
Griffith's Mississippi Chancery Practice, 690, section 613.
The specific relief prayed cannot be granted and unless under the prayer for general relief, a decree can be made in favor of the complainants, or some of them, the bill should have been dismissed. In modern practice the rule is more liberal, and under the general prayer any relief consistent with the bill, and within its scope, may be afforded though it be inconsistent with the relief prayed. But relief must yet be such as can be afforded on the facts stated and it must appear that the defendant is fairly apprised by the bill that the relief is sought by the complainant.
Bell v. Clark, 14 So. 318.
It is the general rule of equity pleadings that no relief can be granted except such as are warranted by the allegations of the bill.
U.S. Casualty Co. v. Malone, 126 Miss. 288, 88 So. 709.
Where the plaintiff inserts both a special and a general prayer, if the relief to which he is entitled is inconsistent with that specifically prayed, under the general prayer he may have such relief as is consistent with the complaint and the case made and with the relief specifically prayed. But relief which is entirely distinct from and repugnant to the special relief prayed cannot, it has been held, be granted under a general prayer.
16 Enc. Pl. Pr. 804.
A court of equity will not permit a bill framed for one purpose to answer another, to the surprise or prejudice of a defendant; nor can special relief prayed for, and not objected to, be abandoned in favor of a different decree under the general prayer, though it seems that, if the bill shows a case for relief different from that specially prayed for, the complainant should be allowed to amend, and thus obtain what he is entitled to, but the amendment can only be allowed under these circumstances, not to make a different case.
Shipman on Equity Pleading, page 226; Fletchers Equity Pl. Pr., section 77, p. 109; Puterbaugh's Chancery Pl. Pr. (3 Ed.), pp. 58 and 59.
While under the general prayer any relief consistent with the bill and within its scope may be granted, it must be such as can be afforded on the facts stated, and it must appear that defendant is fairly apprised of the relief sought.
Weeks v. Thrasher, 52 Miss. 142; Bell v. Clark, 71 Miss. 603, 14 So. 318; Barkwell v. Swan, 69 Miss. 907, 13 So. 809; Hardy v. Gregg, 2 So. 359.
In the year 1917 appellant and appellee W.G. Paxton had an oral agreement by which appellant was to purchase of said appellee the lands in Sharkey county, described in the bill. The purchase price agreed upon was three thousand dollars, and the payments thereon were to be in installments at such times and in such amounts as should be agreeable to appellant. On December 26, 1917, appellant paid eight hundred dollars of said price, and on the next day appellee Paxton, by letter, acknowledged receipt thereof as part payment and promised to forward deed as soon as same could be conveniently prepared, and the letter expressly authorized appellant to go immediately into possession of the land, which she did. On April 1, 1919, appellant made another payment of eight hundred dollars, which Paxton acknowledged by a formal receipt, reciting that it was "on account of payment on property in Sharkey county."
Thereupon and thereafter appellant insisted that the deed of conveyance for said property be executed and delivered to her, and Paxton continued to promise and assure her that he would attend to the matter, and would do so as soon as he could get together the proper data and arrange with his attorney to prepare the papers. Later appellant asked the aid of said attorney, and the attorney, who was a friend of both the parties, sought to get the matter closed, and Paxton repeated his promises to the attorney, making divers excuses that he had been theretofore much occupied with other matters, and had for that reason been unable to attend to this transaction, but still promising that he would soon see to it that the proper papers were executed. This continued until the latter part of the year 1924, when one of the tenants to whom appellant had rented a portion of the property advised appellant that Paxton had notified the said tenant that the rent should be paid to him (Paxton), which was the first intimation to appellant that Paxton was preparing to repudiate the agreement; and this Paxton did later do, on December 28, 1925, by conveying the land to the appellee McClelland, and thereafter appellant was put out of possession.
On April 15, 1929, appellant filed her bill for specific performance of said contract, and for general relief, and later an amended bill was filed. To these bills a general demurrer of "no equity" was filed, and also a special demurrer interposing, among others, the special ground of the bar of the statute of limitations. The court sustained both the general and the special demurrers, and dismissed the bill.
The action of the court was right so far as concerns the prayer for specific performance. There was nothing in writing which described or identified the lands, or stated the total amount of the purchase price, or the terms of payment; and, in this state, part performance does not take the case out of the statute, which requires a contract for the sale of lands to be in writing. Section 3343, Code 1930, and annotations thereunder. But we think the bill states a case for relief in respect to the recovery of the purchase money paid, and that the right of such recovery is not barred by the statute of limitations.
It is a familiar principle of law that, where payments are made by a purchaser under a parol contract for the sale of land, and the vendor refuses to complete the transaction by the execution of the necessary deed, the purchaser may recover the amount or amounts paid as for money had and received; and it is equally well established that the statute of limitations begins to run against the action for the recovery of said purchase money only from the date when the vendor declines to execute the agreement, or else takes some such affirmative action as will be equivalent to an announcement that he will not further recognize the said parol contract of sale. 37 C.J., pp. 858, 859, and cases cited under notes 26 and 27. See, also, Farmer v. Best, 246 Mich. 434, 224 N.W. 399. So long as the parol vendor continues to promise a conveyance and to give assurance that the oral contract will be performed, he is manifestly not in a position to invoke the statute of limitations; and that is the case here, as the stated facts disclose. 27 R.C.L., p. 628; 2 Wood on Limitations (4 Ed.), pages 794, 795.
The six-year statute of limitations applies (Code 1930, section 2292), because both the letter and the receipts hereinbefore mentioned state the amounts received, and that the money was received on account of the purchase of the property, although the property is not definitely described. This is a sufficient acknowledgment in writing of a state of facts out of which the law implies an obligation to repay, and therefore the obligation to repay does not rest in parol. Fowlkes v. Lea, 84 Miss. 509, 515, 516, 36 So. 1036, 68 L.R.A. 925, 2 Ann. Cas. 466. See, also, Cock v. Abernathy, 77 Miss. 872, 28 So. 18; Washington v. Soria, 73 Miss. 665, 19 So. 485, 55 Am. St. Rep. 555; Benefit Association v. Bank, 99 Miss. 610, 635, 55 So. 408.
Appellees do not in their briefs undertake to controvert the propositions covered in the two foregoing paragraphs, but they center their efforts to uphold the action of the trial court, in dismissing the bill in its entirety, upon the contention that, because the particular relief prayed by appellant in her bill was for a specific performance, and for an accounting, not of any sum due to appellants, but of the amount of balance required of appellants to pay to appellees, appellant cannot now under her prayer for general relief fall back upon another or alternate theory of recovery and demand a decree under this bill, in the manner in which it has been drawn, for the purchase money paid by her. Appellees make a strong argument that the facts stated in the bill in respect to the payments by appellant of part of the purchase money were mere incidental or subordinate recitals in the statement by appellant of the facts which she avers would entitle her a specific performance, and that these incidental facts cannot now be transmuted into dominant or controlling facts for a recovery under another theory, that is to say, under the different theory that she is entitled to the recovery of the purchase money paid.
The reason upon which the rule contended for by appellees is based is that the opposite party cannot be expected to give contestable attention to the mere incidents of the narrative of a bill. On the other hand, the rule is firmly established by numerous decisions of this court that under the general prayer any relief will be granted which the established main facts of the bill justify, provided that the relief so granted be such, fairly considered, as will not operate to the surprise or prejudice of the defendant, reasonable alertness having been exercised on his part. The averments of this bill in respect to the payments made on the purchase money are main or principal facts, and the law is so well settled and is so familiar to all that, in the event the purchaser is unable to secure specific performance of a contract of purchase, he is entitled to his purchase money, it could cause no surprise that this lesser relief should be grantable here under the prayer for general relief. The office of a prayer for general relief is to enable the court to grant the relief which a case warrants if the complainant has mistaken the special relief, or to enable the court to grant appropriate relief if for any reason it is unable to grant the specific relief asked. The rule may be summarized in the statement that, although a complainant may not be entitled to all he demands in his bill, if he shows enough to be entitled to some relief, he can have the relief, under the general prayer, to which he is actually entitled, so long as this is upon facts which may be fairly regarded as among the main facts averred, and no surprise to the opposite party is thereby unjustly caused.
We express no opinion on the other features of the case, among which are whether appellant may recover in whole or in part for the improvements placed by her upon the land, or whether she is entitled to a lien on the said land for her said purchase money paid or for the improvements. These questions have not been fully discussed in the briefs, and we remit them to the chancellor, so that the parties may first have the benefits of his opinion as to all of the reserved questions.
Reversed and remanded.