Barnett v. Nichols

56 Miss. 622 | Miss. | 1879

ChalmeRS, J.,

delivered the opinion of the court.

The bill details a state of facts which, if true, shows, an extraordinary degree of credulous trust and confidence on one side, and of bad faith on the other. The parties were neighbors, and confidential and intimate friends. Barnett, who was without means, borrowed from Nichols $847, with which to make the first payment on a tract of land which he had purchased from another. To secure repayment of it, he executed his note, secured by a trust-deed on the land. Twelve months afterwards, he borrowed from his friend the further sum of $1,000, with which he made to his vendor the second payment on the land; and this sum, also, he promised to secure by note and trust-deed, but it was deferred from time to time, and never done.

A year later, his vendor having filed a bill and recovered a decree against him upon the third and last note, for $1,756, and being about to sell him out, he again applied to complainant, and received from him, without any written evidence of the loan, the money necessary to pay off and satisfy the decree.

Complainant had thus advanced the entire purchase-money of the plantation; and, save for the amount first advanced, ($847), he had no written evidence whatever.

It was fully understood and agreed that the sums subsequently advanced were to be protected, as was the first, by a mortgage on the land, and complainant frequently demanded that it should be done, but it was delayed and deferred until the entire debt was about to become barred by the Statute of Limitations. Shortly before the bar would have attached, complainant having become somewhat importunate that something should be done, defendant wrote him a note, proposing to convey to him the entire plantation in satisfaction of the debt, if complainant would sell back to him certain designated portions of it at $6 per acre, in three annual instalments.

Complainant verbally accepted the offer, with a slight modification, which was consented to, and defendant at once yielded up possession of the land, except that portion which it was agreed that he should repurchase. No writings of any kind, save the above-mentioned note or letter, were drawn up, but each party took, and has continuously remained in possession, in sevei'alty, of the portion he was to own. Complainant has repeatedly pressed defendant for a deed, offering always to carry out the agreement on his part by a reconveyance, at the stipulated price, of the portion occupied by defendant. Defendant not only refuses to make a conveyance, but is threatening, by an action of ejectment, to dispossess complainant of that portion of the land occupied by him. In the meantime, complainant’s claims on defendant for the money loaned have become barred by the Statute of Limitations, both as to the amount secured by the trust-deed and the unsecured sums.

These are the facts charged by the bill and admitted by the demurrer. The prayer is that the contract to convey, embodied in the letter and verbally accepted by complainant, and practically carried into effect bj^ the possession thereunder, may be enforced by the execution of proper conveyances ; or that, if this cannot be done, the land may, by a sale, be subjected to the entire amount due complainant. Certainly the relief asked should be granted, if consistent with the established principles of law ; but an insuparable barrier stands in the way. We cannot fasten a charge upon the land for any sum beyond that secured by the trust-deed, because there was no contract to that effect; and it is impossible to decree a specific performance of the agreement evidenced by the letter, because of the patent ambiguity in the description of the land. It is simply referred to as “ my land,” “ the entire tract, 728 acres,” without other location or description. There is, it is true, a somewhat more definite designation of the portions which are to be resold to defendant; but while we are entitled to loot to these in order to determine what land is spoken of in the previous portion, we find oui’selves, even with their aid, destitute of data sufficient to identify the tract; nor is any thing pointed to in the writing which authorizes us to admit extrinsic evidence. It is impossible, therefore, to administer relief in either one of the specific forms in which it is asked. But, defendant having induced complainant to accept his proposition in satisfaction of the debt, and thereby to forbear to take steps to collect it, will not be now allowed to plead the Statute of Limitations against that debt. Having' agreed to make payment in a particular manner, and having practically acted upon this agreement, he cannot repudiate it without a restoration of the status quo. While complainant, by his own folly, fails to get the legal title to which, in justice, he is entitled, defendant will not be permitted to add to the bad faith charged against him, by setting up the Statute of Limitations against the debts which he has induced complainant to believe were paid off.

We are powerless to compel a performance of his contract, but we can restrain him from the perpetration of a fraud. Staton v. Bryant, 55 Miss. 274; Laing v. McKee, 13 Mich. 124.

Complainant will be entitled, under the prayer for general relief, if he succeeds at the final hearing in establishing the facts charged in the bill, to a decree of foreclosure of the trust-deed for the $847, and interest. Nor will the relief stop there. Inasmuch as the Court of Chancery must investigate the fact of indebtedness upon the unsecured sums, with a view of detei’mining whether the fraudulent conduct charged in the hill should operate to preclude the setting up of the Statute of Limitations against it, there can be no reason why, if it should determine affirmatively both as to the indebtedness and as to the fraud, it should not administer full relief without remanding the parties to au action at law.

It is the settled doctrine that full relief will be administered in a Court of Chancery where the bar has attached during the pendency of unfounded litigation instituted by the debtor ; and no substantial difference in principle is seen between such a case and one where it has attached while the creditor was relying upon an invalid payment, which both parties had treated as satisfactory. 2 Story’s Eq. Jur., sects. 1316a, 1521; Hunt v. Knox, 34 Miss. 656.

If, therefore, the facts charged are established, complainant will be entitled to a decree in personam for the unsecured sums due him.

Decree overruling demurrer affirmed, with leave to answer within sixty days.