Opinion
No. 36332.
February 24, 1947.
1. EQUITY.
On general demurrer, allegations of bill would be assumed to be true.
2. APPEAL AND ERROR.
An order transferring case from chancery to circuit court was appealable, notwithstanding constitutional provision denying the predicating of error upon mere mistake in transferring a cause of equity jurisdiction to circuit court, where there was also appeal from decree which sustained general demurrer grounded upon finding of complete absence of equitable rights (Const. 1890, sec. 147).
3. EQUITY.
A bill alleging that complainants purchased lands from defendant, and that parties entered into contract requiring defendant to do certain things, and praying for injunction against payment by escrow agent of funds deposited, for discovery of rentals received by defendant, for fixing of lien on impounded funds, etc., was not demurrable on ground that principal relief sought sounded in damages and hence was not within chancery jurisdiction.
APPEAL from the chancery court of Humphreys county. HON. J.L. WILLIAMS, Chancellor.
Dent Ward and Burkett H. Martin, all of Vicksburg, Fielding L. Wright, of Jackson, and Means Johnston, of Greenwood, for appellants.
This is a suit for specific performance of a land contract and such a suit can always be maintained in a court of equity for the land with abatement of the purchase price for any deficiency in quantity or quality of acreage.
Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; Estell v. Myers, 54 Miss. 174; McNeer Dodd v. Norfleet, 113 Miss. 611, 74 So. 577; Lundy v. Hazlett, 147 Miss. 808, 112 So. 591; Alexander v. Meek, 132 Miss. 298, 96 So. 101; Griffith's Mississippi Chancery Practice, p. 458, Sec. 436; 19 Am. Jur. 452, Sec. 31; 49 Am. Jur. 6, 7, Sec. 2; 65 A.L.R. 39-41, note on Specific Performance as Matter of Right; 8 Thompson on Real Property 619, Sec. 4634; 1 Pomeroy's Equity Jurisprudence (5 Ed.), p. 381, Sec. 221; 4 Pomeroy's Equity Jurisprudence (5 Ed.), p. 1034, Sec. 1402.
There is always a fiduciary relationship between the vendor and vendee of land. A trust arises from this relationship which equity will enforce by placing a lien upon the land or upon the funds representing the proceeds thereof. Equity always grants relief to recover a fund impressed with a trust.
Jackson v. Jefferson, 171 Miss. 774, 158 So. 486; Risk et al. v. Risher, 197 Miss. 155, 19 So.2d 484; Patridge et al. v. Riddick, 174 Miss. 258, 164 So. 221; Davis v. Heard, 44 Miss. 50; Wilson v. Cox, 50 Miss. 133; Thurman v. Pointer, 67 Miss. 297, 7 So. 215; Carney v. McGilvray, 152 Miss. 87, 119 So. 157; Mathews v. Patterson, 2 How. (3 Miss.) 729; Ragsdale v. Meridian Land Industrial Co. et al., 71 Miss. 284, 14 So. 193; Reed v. Phillips, 83 S.W.2d 554; Haimovitz v. Robb (Fla.), 178 So. 827; Milton Realty Co. v. Wilson (Ala.), 107 So. 92; 1 Pomeroy's Equity Jurisprudence (4 Ed.), pp. 516, 517, Secs. 276, 278; 2 Pomeroy's Equity Jurisprudence (4 Ed.), pp. 2004, 2005, Sec. 943, pp. 2081-2083, 2085, 2086, Sec. 963; 3 Pomeroy's Equity Jurisprudence (4 Ed), pp. 2404, 2405, Sec. 1053; 4 Pomeroy's Equity Jurisprudence (5 Ed.), p. 1047, Sec. 1405b; 5 Pomeroy's Equity Jurisprudence (4 Ed.), pp. 5036-5037, Sec. 2254, pp. 5038-5041, Sec. 2255, pp. 5041-5044, Sec. 2256; 49 Am. Jur. 118, Sec. 100, pp. 119, 120, Sec. 102, pp. 123, 124, 125, Sec. 105; 55 Am. Jur. 922, Sec. 528; 10 L.R.A. (N.S.) 117, 118; 57 A.L.R. 1508, 1509, notes and annotations on Marketable Title; 81 A.L.R. 901, notes and annotations on Specific Performance-Shortage.
Courts of equity always have jurisdiction of a bill for discovery without regard to the fact that complainant may have legal means of obtaining proof.
Keystone Lumber Yard v. Yazoo M.V.R. Co., 96 Miss. 116, 50 So. 445, Ann. Cas. 1912A, 801; Bomer Bros. et al. v. Warren County, 103 Miss. 343, 60 So. 328; Citizens' Bank of Hattiesburg v. Tracy, 120 Miss. 413, 82 So. 307; Harleston v. West Louisiana Bank, 129 Miss. 111, 91 So. 423.
The chancery court has general jurisdiction of fraud.
Smith v. Everett, 50 Miss. 575; Foote-Patrick Co. v. Caladonia Ins. Co., 113 Miss. 419, 74 So. 292; Davis v. Heard, supra; Parham v. Randolph, 4 How. (5 Miss.) 435; Hall v. Thompson, 1 Smedes M. (9 Miss.) 443; English v. Benedict, 25 Miss. 167; Rimer v. Dugan, 39 Miss. 477; Estell v. Myers, 47 Miss. 4; Code of 1942, Secs. 159, 1262; Constitution of 1890, Sec. 159; 30 C.J.S. 319, Sec. 1, p. 324, Sec. 7, pp. 381-383, Sec. 48; 2 Pomeroy's Equity Jurisprudence (4 Ed.), p. 1893, 1898, Sec. 912, p. 1904, Sec. 914(d).
The injunction was rightfully sued out.
Simmons v. Lard, Walk. (1 Miss.) 159; Parham v. Randolph, supra; Griffith's Mississippi Chancery Practice, Secs. 434, 435, 436, 437, 443, 456.
This appeal is well taken and is squarely within Section 1148 of the Code of 1942.
Warner v. Hogin, 148 Miss. 562, 114 So. 347; Levy v. Rossel, 82 Miss. 68, 33 So. 651; Code of 1942, Sec. 1148.
Clements Clements, of Rolling Fork, for appellee.
This is not a case of equitable jurisdiction, but is purely an action for deceit and fraud, same being a tort, it is a law action, and the circuit court had full and exclusive jurisdiction thereof, and the powers of said court were adequate to give all the relief necessary in the case. A mere allegation in a bill for disclosure or for an accounting doesn't necessarily confer jurisdiction on an equity court, but is merely incidental and in aid of the principal question in the case.
Warner v. Hogin, 148 Miss. 562, 114 So. 347; Pieri v. Sevier, 164 Miss. 572, 145 So. 97; Goff v. Jacobs, 164 Miss. 817, 145 So. 728; McArthur v. Fillingame, 184 Miss. 869, 186 So. 828; 6 R.C.L. 932, Sec. 316.
There is no equity in the bill.
Jones v. Jones, 79 Miss. 261, 30 So. 651; Lundy v. Hazlett, 147 Miss. 808, 112 So. 591; Learned v. Holmes, 49 Miss. 290.
The court had no right under the allegations of this bill to grant the ex parte injunction to impound the funds in the hands of the Citizens Bank Trust Company of Belzoni, the escrow agent under the terms of the contract, and which funds represented the sum of $100,000.00 of the purchase money for the property contracted to be conveyed under that executory agreement of sale. It is the contention of the appellee, being the seller under the said contract, that he was entitled to the money as a part of the purchase price of the property agreed to be sold, that it belonged to him under the terms of the contract, and that the chancery court had no power or authority to impound the funds, nor to fasten a lien upon the funds in question in this case.
Rankin v. Ford, 160 Miss. 802, 134 So. 178; Ringold v. Goyer Co., 164 Miss. 261, 144 So. 706; Echols v. Hammond, 30 Miss. 177; McArthur v. Fillingame, supra; 116 A.L.R. 271; 2 Words Phrases (Perm. Ed.), p. 665, Affirmance.
The interlocutory decree appealed from in this case does not come within the provisions of the statute. The sole question involved was one of jurisdiction as between the chancery court and the circuit court — whether the cause of action was one of equity or law cognizance. It is true that, in determining that question, it would be necessary for the court to decide whether appellant's bill, under the applicable, equitable principles, states grounds for discovery and accounting; but the decision of the latter question would be merely incidental and in aid of the former question. The decision of the question of jurisdiction, as between the chancery court and the circuit court, was not a determination of the principles involved in the cause.
Warner v. Hogin, supra; Marquette Cement Mfg. Co. v. New Amsterdam Casualty Co., 174 Miss. 843, 165 So. 615; Liberty Trust Co. v. Planters' Bank, 155 Miss. 721, 124 So. 341; Love v. Love, 158 Miss. 785, 131 So. 280; Dunn v. Dent, 176 Miss. 786, 170 So. 299; Breland v. Lemastus, 183 Miss. 150, 183 So. 500; Murphy v. City of Meridian, 103 Miss. 110, 60 So. 48.
This is not a proper case for specific performance of the executory contract of sale involved, and the chancery court was imminently correct in refusing to take jurisdiction thereof. Specific performance of such contract is not a matter of right, as counsel for appellants seem to believe, but is a matter wholly within the discretion of the court, and if the court from the examination of the pleadings in the cause determines that the instant case is not one for such relief, he not only has the power, but should exercise his right to deny the same.
Curtis v. Blair, 26 Miss. 309; Yazoo M.V.R. Co. v. Payne, 93 Miss. 50, 46 So. 405; Goff v. Jacobs, supra; Fleming v. Miller, 124 Miss. 721, 87 So. 277; Pan-American Petroleum Corp. v. Woods, 169 Miss. 562, 153 So. 793; McGuire v. Stevens, 42 Miss. 724; Holmes v. Evans, 48 Miss. 247; Milam v. Paxton, 160 Miss. 562, 134 So. 171; Fowler v. Nunnery, 126 Miss. 510, 89 So. 156; Sturm et al. v. Dent, 141 Miss. 648, 107 So. 277; Swope v. Watson, 136 Miss. 348, 101 So. 488; Ragsdale v. Meridian Land Industrial Co., 71 Miss. 284, 14 So. 193; Todd v. Bettinger, 98 Minn. 170, 8 Ann. Cas. 961; Chicago M. St. P.R. Co. v. Durant, 44 Minn. 361, 46 N.W. 676; Davis v. Ely et al., 5 L.R.A. 810; Griffith's Mississippi Chancery Practice, Secs. 303-304; 10 L.R.A. (N.S.) 120-121, notes; 10 R.C.L. 1030, Sec. 222, p. 1037, Sec. 229; 25 R.C.L. 214, Sec. 16, p. 229, Sec. 28; 2 Ann. Cas. 148, note.
No relation of trust arises out of a mere contract of the sale of land or a conveyance thereof.
Lewis v. Williams, 186 Miss. 701, 191 So. 479; Curtis v. Blair, supra; Yazoo M.V.R. Co. v. Payne, supra; 10 L.R.A. (N.S.), p. 121; 25 R.C.L. 229, Sec. 28.
In order to entitle the party to equitable relief on the grounds of discovery, the information shown must be exclusively within the knowledge of the defendant, and cannot be obtained by complainant in any other reasonable way.
McKee v. Coffee, 58 Miss. 653; Boyd v. Swing, 38 Miss. 182; Lesley v. Rosson, 39 Miss. 368; American Freehold Land Mortgage Co. v. Jefferson, 69 Miss. 770, 12 So. 464; Planters' Compress Ass'n v. Hanes, 52 Miss. 469; Warner v. Hogin, supra; Ringold v. Goyer Co., supra; Griffith's Mississippi Chancery Practice, Secs. 24, 173-174, 427, 430, 431.
While it is true that the chancery court has jurisdiction of cases in fraud where by the nature of the case itself the chancery court is the only forum wherein proper and adequate relief can be administered, the intervention of fraud, if such there be, is not the thing that supports the jurisdiction of the court. Where the remedy at law is fully adequate the equity court will not assume jurisdiction. In this case the equity court did not assume jurisdiction, but finding that the law court had complete power to administer full relief, transferred the case to that court, and on such order of transfer the circuit court under the Constitution and the statutes at once acquired full jurisdiction to fully adjudicate the question in the case.
Learned v. Holmes, supra; Jones v. Jones, supra; Lundy v. Hazlett, supra.
This is not a suit primarily for injunction, but seeks an injunction only as incidental relief to the main relief therein prayed.
Griffith's Mississippi Chancery Practice, Secs. 434, 435, 436.
Appellants contracted with appellee to purchase a tract of farming lands comprising five thousand acres at the price of $250,000. Appellants paid $150,000 in cash. The deed was deposited as an escrow with the Citizens Bank Trust Company of Belzoni, to be delivered upon payment by appellants of the balance due. Pending final payment, appellants occupied and made extensive and expensive improvements thereon. They later paid to the escrow agent the remainder of the purchase price and received the deed.
The foregoing facts are taken from the allegations of the bill, to which a general demurrer was sustained, and from which we select the following allegations here assumed to be true. The parties entered into a contract by which Charping agreed to locate for appellants all property lines; Charping would retain an undivided one-fourth mineral interest in the Manny Plantation, and appellants would be entitled to lease and delay rentals thereon from and after consummation of the contract; out of the purchase price a brokerage fee of $11,250 was to by paid to C. Sevier; Charping agreed to pay all outstanding mortgages through the escrow agents out of the purchase money; seller was to deliver to buyer a copy of an existing timber contract and of all mineral leases and transfers thereon.
The bill further alleged that appellee has fraudulently misrepresented the quantity, quality and location of the lands; that he had represented that said lands "were not subject to damage or inundation from seep water"; that he did not locate the boundaries of the lands; that he has not furnished the escrow agent a list and description of the existing mortgages and liens; that he has appropriated to his own use all lease rentals; that the escrow agent, unless restrained, will deliver to Charping the funds paid to it "less any amounts paid by Charping in accordance with said contract," thereby causing a multiplicity of suits, and causing irreparable harm, as well as endangering complainant's chances of recovery of damages resulting from the deficiencies in the quantity and quality of the lands which damages in the alleged sum of $75,000 are claimed.
The prayer of the bill is for injunction against the payment by the escrow agent of the funds deposited by complainants; for discovery of the rentals received by defendant and an accounting thereof; and for fixing of a lien thereon upon the impounded funds to the extent of the damages shown; and for decree requiring defendant to establish the property lines alleged to involve an outlay of $6,000. The prayer further demands that defendant deliver deed showing a reservation of royalties upon the Manny Place to include only a one-fourth non-participating interest. As to this last element of relief, we may interpose that both the contract and the deed are consistent in describing such interest as an "undivided one-fourth interest in and to all the oil, gas and mineral rights," etc.
The chancellor sustained the demurrer, also a motion to dissolve the injunction which ran only to the escrow agent and had been granted, and a motion to transfer the cause to the circuit court. Solicitor's fees were allowed to counsel for Charping. Although there was also a special demurrer by Charping alleging multifariousness and a demurrer by him to the cross bill of the bank, the decree recites that the cause came on "to be heard, on the motion to dissolve an injunction, on original bill, and general and special demurrer thereto," and it was decreed that "the motion and demurrer be, and the same are hereby sustained and the injunction previously sued out in this cause be and is hereby dissolved, and the escrow agent ordered to pay over to defendant Irby Charping the money in its hands due." As stated, the motion to transfer was sustained. The decree allowed an appeal.
The appellee attacks in limine the right of appeal from an order transferring the cause, citing our Constitution, Section 147. We are not unmindful of the clear direction of this section denying the predicating of error upon the mere mistake in transferring a cause of equity jurisdiction to the circuit court. But here we are confronted with an appeal from a decree which likewise sustained a general demurrer grounded upon a finding of a complete absence of equitable rights, and the allowance of an appeal therefrom. We are alert to the probabilities of confusion attendant upon our reading into Section 147 an exception, where the appeal tests whether substantial equities are thereby denied complainant. Robertson v. F. Goodman Dry Goods Co., 115 Miss. 210, 76 So. 149, 151. In this case the language used was: "While we conceive it to be the duty of the circuit court to proceed without question with a cause transferred to it by proper decree of the chancery court, it yet remains that the chancellor might in some instances be in error in transferring a cause that manifestly presents grounds for equitable relief, and that could not be tried in a common-law court, according to right and justice. . . . In such cases the very right of the complainant would depend upon his remedy, and among other rights of litigants they sometimes have the right to equitable remedies, without which their very rights could not be enforced or wrongs done them redressed. If a case of which equity has original jurisdiction should be wrongful(ly) transferred by the chancellor to the circuit court, and an appeal prosecuted by permission of the chancellor, we would be bound to hold that the substantial rights of the litigants are presented." Further support is found in Warner v. Hogin, 148 Miss. 562, 114 So. 347.
We therefore examine whether the bill presents such substantial equities. It is true that the principal relief sought sounds in damages, yet there is ample allegation that compliance with the contract has not been but should be compelled. The allegation supporting the prayer for accounting and discovering would present difficulty if viewed apart from the entire relief sought. Likewise, the granting of injunction will have to be adjudged in the light of the complete allegations. We draw back from approval of such device when used to impound funds in the hands of a third party after the manner of garnishment or sequestration, yet until the matter is heard on its merits it is not possible to adjudge its propriety as a necessary procedure. Compare Simmons v. Lard, Walk. 159. Nor do we place the right to equitable relief upon the theory that specific performance may be decreed when damages from fraudulent representations is the sole relief sought.
We are of the opinion that there are elements of relief whose refusal would work a denial of substantial equitable rights amounting to injustice. We accept the appeal as allowed from the decree sustaining the general demurrer. We must ignore the circumstances that the bank filed an answer and cross-bill, to which later a demurrer was filed. The entire matter has thus far been adjudicated upon the general demurrer to the bill.
We are of the opinion that there was error in sustaining the general demurrer, and in dissolving the injunction, and that action thereon should await a hearing by the Chancellor upon answers to be filed.
Reversed and remanded.