Rives v. Nesmith

64 Miss. 807

Opinion

Cooper, C. J.,

delivered the opinion of the court.

The appellee exhibited her bill in the Chancery Court of Claiborne County to enjoin the prosecutiou of an action of ejectment, instituted against her by the defendant to'recover certain lands, and to have him decreed trustee of the legal title for her.

The facts are found by the Chancellor to be: “ That one Joseph Noble entered into possession of the lands in controversy under a bond for title executed by JD. B. Sanford as ‘tutor’ for Isabella B. Sanford, a minor, residing in the State of Louisiana; that being so in possession, he contracted with Nannie K. Nesmith and Orville B. Rives to sell them the said lands for three thousand five hundred dollars, and to make a title upon payment in full of the purchase-money, which contract is evidenced by a bond for title; and the three thousand five hundred dollars was to be paid, one thousand two hundred dollars cash, and the balance in one and two payments, to wit, one thousand one hundred and fifty dollars on the first day of January, 1883, and one thousand one hundred and fifty dollars on the first day of January, 1884; that said Nannie K. Nesmith and Orville B. Rives assented to said contract, made said cash payment, executed their joint and several promissory notes for the said two deferred payments, received of Joseph and Sarah Noble their said bond for title, and weut into possession of the land in controversy under said agreement and bond for title; that before the cash payment was made, or the execution of said notes and bond for title, the said Nannie K. and Orville had actual and constructive notice of said Joseph Noble’s defective title to said land and knew that said Joseph Noble had no good and valid title to the same ; that about the time the first of said promissory notes became due the said Rives entered into a written contract with his co-vendee, the said Nannie, whereby he assigned to her his interest in his, said Noble’s, bond for title to them of said lands; said contract was as follows, to wit: said Rives was to remain in possession of the lands in controversy, and to have use of the gin and mill on the adjoining lands for the period of two years, beginning first of January, 1883, to reimburse him for the sum of five hundred dollars paid by him to Joseph Noble (on the cash payment aforesaid on said lands), and for all improvements made by him on the lands in controversy; that said Nannie was to assume the payment of both of said notes and to release the said Orville from any liability on same; that said Orville was at the expiration of said two years to surrender possession to said Nannie, and that said Noble was to make title to said Nannie alone whenever she complied with the conditions of the said bond for title; that under the contract hist aforementioned, the said Nannie procured the release of the said Orville from any further liability on said two notes, and also assumed the payment of same; that while still in possession of said lands, never having been out of possession from the time he entered as co-vendee with said Nannie, said Rives, on the eleventh day of December, 1884, without the knowledge or consent of either the said Nannie or the said Joseph and Sarah Noble, purchased the outstanding title to the lands in controversy from Belle B. Reynaud, being said minor Belle B. Sanford, and afterward still remained in -«ossession of said lands until after the first of January, 1885, when e moved out of possession after the institution of eviction proceed-igs against him; that on the ninth day of April, 1885, under the ,ame title acquired by him as aforesaid from Belle B. Reynaud, he commenced an action of ejectment against said Nannie.”

On the facts so found the Chancellor decreed that Rives held the title to the lands as trustee for the complainant, and directed an account to be taken, showing the price paid by him to Mrs. Reynaud for the title acquired by him, for which sum he decreed a lien in his favor on the lands; upon the payment of the sum so found due he directed that Rives should convey the legal title to the said Nannie, and perpetuated the injunction against the prosecution of the action of ejectment. From this decree the heirs-at-law of Rives (he having died since its rendition) appeal.

The written contract referred to in the Chancellor’s findings of facts as having been made between Mrs. Nesmith and Rives has been lost, and its contents were established by parol.

C. R. Nesmith, a mutual friend of the parties and the person by whom the written contract was reduced to writing, gives this history of the circumstances under which it was made and states the contents of the writing: “ There was some altercation between Rives and JSTesmith (the husband of complainant) about its payment (the payment of the first maturing note given for the purchase of the land from Noble). Rives sent a buggy for me to go up to his mother’s. I went up, and there found them discussing the matter. Knowing that Rives had no money and that Mrs. Nesmith could not return the money to him that he had paid on the place, I suggested that Rives have the use of the place for two years, which I thought would reimburse him for his payment and the improvements he had made. This was agreed to and I put the agreement in writing. The agreement was that Rives, for the five hundred dollars cash payment he had made and for the improvements he had made, should have the place for two years and the use of the gin and mill on the adjoining place free of rent, and that Mrs. Nesmith should pay the joint notes as they fell due and was to receive the title from Noble. I reduced this agreement to writing.” There seems to have been but little controversy between the parties as to the contents of the written contract, except that complainant asserted it contained the stipulation that she should assume payment of the unpaid purchase-money, while defendant denies that anything was said, either in the oral negotiations or in the contract on that subject. The parties are at issue also upon the reasons for which the defendant withdrew from the purchase. He avei’s that upon learning the character of Noble’s title and that a minor was the holder of the real title, he declined to make further payment unless indemnified, and that Noble declining to execute a satisfactory bond of indemnity, he refused to pay the purchase-money or to quit the possession of the property unless repayment should be made of the sum he had paid. The complainant states that defendant knew at the time of the purchase the exact character of the claim Noble had to the land, and that his reason for retiring from the purchase was that he was unable to pay the balance due. This is, we think, wholly immaterial. The question is, what was done, and not why it was done. The whole testimony makes it reasonably certain that what was agreed on was that the defendant, having from some reason determined not to complete the purchase, was by the consent of Mrs. Nesmith and Mr. Noble released from his obligation on the notes and was to take nothing under the bond for title. He was to withdraw from the trade, and Mrs. Nesmith was to pay the unpaid purchase-money and have title conveyed to her by Noble as though the bond had been originally made to her alone; that Rives was to have the use of the property for two years (and the use of the gin and mill on Mrs. Nesmith’s adjoining place) in lieu of a return to him of the purchase-money he had paid and of compensation for improvements he had put upon the land. The written contract, as established, is not at all contradicted by proof of these facts, and they are, we think, indisputably established by all the testimony in the case. The statement by the Chancellor in his findings of fact that the defendant “ assigned ”• the bond for title to the complainant means, as we construe it, no more than that she was to have the title thereby secured to be conveyed from Noble. As matter of fact the bond appears in the record and there is no assignment thereon. Under the contract between Mrs. Nesmith and Rives Noble permitted Rives’ name to be erased from the notes, and thereafter Mrs. Nesmith was the recognized obligee in the bond and Rives was her tenant. It would probably be immaterial whether Rives was the assignor of his interest in the bond to Mrs. Nesmith or merely withdrew from the purchase, but; However this may be, it is, we think, established by the evidence that he simply decliued to complete the purchase and was by the assent of all parties allowed to withdraw.

After this written contract was made and Rives’ name erased from the notes, he held possession of the land simply as tenant of Mrs. Nesmith. There was no relationship of trust or confidence between himself and Noble. He owed him no duty either as vendor or landlord, and might lawfully acquire the real title from the real owner. ,¡

So long as the relationship of landlord and tenant existed between Rives and Mrs. Nesmith he could not deny her title to the premises in an action brought by her to recover either the possession of the property he had agreed to surrender or to enforce any obligation due from him as tenant to her as landlord. But it is not true that a tenant may not acquire an adverse title to that of his landlord during the tenancy, and after the expiration of his term and the surrender of possession recover upon it. 1 Wash, on Real Prop, 490; Tiedman on Real Prop. 199.

On the facts found by the Chancellor we are of opinion that the law is with the appellants, and that the injunction should have been dissolved and bill dismissed.

The decree will be reversed, the injunction dissolved and bill dismissed, and cause remanded to the court below to inquire of the damages that should be awarded on the injunction bond.