Opinion
No. 40575.
December 16, 1957.
1. Cancellation of instruments — ratification or acquiescence as a bar to relief.
Where a party, with knowledge of facts entitling him to rescission of a contract or conveyance, ratifies it without fraud or duress, he has no claim to the relief of cancellation.
2. Cancellation of instruments — ratification or acquiescence — as a bar to relief — election to affirm contract.
Express ratification is not required to defeat remedy of cancellation, but acts of recognition of contract as subsisting with intention of avoiding it have effect of an election to affirm.
3. Trespass — church ratified sale of property to highway commission and could not recover for alleged trespass and taking of church property by highway commission.
Where church, through its minutes rejected highway commission's offer of $1,500 for particular land but deposited $1,600 check given by highway commission for the land and made disbursements from funds thus received, church ratified the sale and could not recover for alleged trespass and taking of church property by highway commission.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Stone County; LESLIE B. GRANT, Judge.
Blass Parsons, Wiggins; Matthew Harper, Asst. Atty. Gen., Jackson, for appellant.
I. The appellee does not have the capacity to sue. American Insurance Co. v. Edwards (Tex. Civ. App.), 78 S.W.2d 1020; Edward Hines Yellow Pine Trustees v. State, 130 Miss. 348, 94 So. 231; Gullet v. First Christian Church of Meridian, 154 Miss. 516, 122 So. 732; Johnson v. Albritton, 101 Fla. 1285, 134 So. 563; Lake v. Munford, 4 Sm. M. 312; Osceola Presbyterian Church v. Harken, 177 Ia. 195, 158 N.W. 692; Rock Zion Baptist Church v. Johnson (La. App.) 47 So.2d 397; Smith v. Janet, 76 Ga. App. 525, 46 S.E.2d 626; Sec. 5350, Code 1942; 4 Am. Jur., Assoc. Clubs, Secs. 46, 48; 7 C.J.S., Assoc., Secs. 19, 35; 76 C.J.S., Religious Societies, Sec. 102.
II. The jury should not be permitted to view the premises after having deliberated for sometime and after all the witnesses had been excused. Great Atlantic Pacific Tea Co. v. Davis, 177 Miss. 562, 171 So. 550; Jones v. State, 141 Miss. 894, 107 So. 8; Leflore v. State, 196 Miss. 632, 18 So.2d 132; National Box Co. v. Bradley, 171 Miss. 26, 157 So. 91; Parnell v. State, 211 Miss. 100, 50 So.2d 925; Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112; State v. Baker, 28 Idaho 727, 156 P. 102; State v. Moon, 20 Idaho 202, 117 P. 757; State v. Simay, 40 Utah 525, 122 P. 748; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50, 178 So. 80; Sec. 1800, Code 1942; 53 Am. Jur., Trial, Sec. 44; Anno. 95 A.L.R. 1500; 64 C.J., pp. 88, 89; 88 C.J.S., Trials,, Sec. 47.
III. The Court should have accepted and rendered judgment on the original verdict as it was returned and regarded the last portion as surplusage. Atherton v. Crandelmire, 140 Me. 28, 33 A.2d 303; Bakken v. Lewis, 223 Minn. 329, 26 N.W.2d 478; Christensen v. Hennepin Transp. Co., 215 Minn. 394, 10 N.W.2d 406; City of Sylvania v. Miller, 210 Ga. 290, 79 S.E.2d 808; Hall v. McClure, 112 Kan. 752, 212 P. 875; Keating v. Zumwalt, 91 Cal.App.2d 845, 206 P.2d 10; Lake Erie W.R. Co. v. Halleck, 78 Ind. App. 495, 136 N.E. 39; Louisville N.R. Co. v. King, 119 Miss. 79, 90 So. 490; Meridian City Lines v. Baker, 206 Miss. 58, 39 So.2d 541; Mississippi Central R. Co. v. Roberts, 173 Miss. 489, 160 So. 604; Unicy Windham v. John Williams, 27 Miss. 313; 52 Am. Jur., Torts, Sec. 124; Annos. 8 A.L.R. 2d 845; 30 A.L.R. 782; 147 A.L.R. 945; 89 C.J.S., Trial, Sec. 509; 38 Cyc. 1890.
Cephus Anderson, Hattiesburg, for appellee.
I. Cited and discussed the following: Secs, 1800, 5350, 5351, Code 1942; Rule 11, Supreme Court Rules.
On March 22, 1955, the Bethlehem Baptist Church brought this suit in the Circuit Court of Stone County against the State Highway Commission for damages alleging trespass and the taking of Church property. The jury returned a verdict in the amount of $400 and from this judgment, the Highway Commission appeals.
The Highway Commission answered, and as an affirmative defense, plead that the appellee Church had conveyed the land in question by warranty deed to the Highway Commission on March 27, 1952 for a consideration of $1600, less the Federal Stamp Tax of $2.20. The instrument was duly recorded in the deed records of Stone County on April 14, 1952. The deed and cancelled check were introduced in evidence.
The appellee introduced in evidence the Minute Book of the Church. These Minutes show that although the Church rejected an offer of $1500, a motion was passed asking for the amount of $2500. The Minutes further show that the Church received the consideration expressed in the deed for the land. The cancelled check was properly endorsed by the officers of the Church and deposited in the Bank of Wiggins to the credit of Bethlehem Baptist Church. The minutes also show that the Church "allowed Welcome Hill Baptist Church $20.00 allowance on the pool" located on the property which was "sold to the highway". The minutes also show that the Church made other disbursements from the funds received from the sale of the land.
This case comes within the rule announced in the case of Crabb, et al v. Wilkinson, et al, 202 Miss. 274, 32 So.2d 356, where the Court quoted with approval 12 C.J.S., Cancellation of Instruments, Section 38:
(Hn 1) "`Where a party, with knowledge of facts entitling him to rescission of a contract or conveyance, afterward, without fraud or duress, ratifies the same, he has no claim to the relief of cancellation. (Hn 2) An express ratification is not required in order thus to defeat his remedy; and acts of recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it, have the effect of an election to affirm.'"
(Hn 3) The court erred in refusing the requested peremptory instruction by the appellant, the Church having ratified the sale. The judgment of the court below is reversed and judgment entered here for appellant.
Reversed and judgment here for appellant.
McGehee, C, J., and Lee, Holmes and Ethridge, JJ., concur.