Burroughs v. Gilliland, 43 So. 301

43 So. 301 | Miss. | 1907

Mayes, J.,

delivered the opinion of the court.

In the case of Griffin v. Byrd, 74 Miss., 32, 19 South., 717, in speaking of the cases in which a lien in favor of the vendor of real estate is raised, the court says: “The.rule of law on this subject is that the vendor’s lien is only raised when there is a fixed sum of money due from the vendee to the vendor as purchase money for the land conveyed” — citing Peters v. Tunnell, 43 Minn., 473, 45 N. W., 867, 19 Am. St. Rep., 252; 28 Am. & Eng. Ency., p. 166, note 2, and cases there cited. When this deed, made Exhibit 0 to the bill of complaint, is examined in the light of the rule thus established by this court, there can be no doubt but that appellees are entitled to a lien on the property described in the deed of J. A. and J. W. Gilliland to Boy O. Burroughs. The deed states that it is made in consideration of $5,000 cash, and the further consideration of $2,500 to be paid out of the “gross profits” of a stone plant to be erected upon the lands conveyed. By.this deed there becomes a fixed sum of money due from the vendee to the vendors, and this sum of mony is due solely for the purchase money of the land conveyed. See, also, Patterson v. Edwards, 29 Miss., 67, on page 71. The contract, as shown by the deed, meets all the requirements of the rule laid down in Griffin v. Byrd, supra. The recitals of the deed show that it was contemplated by the parties at the time the deed was executed that a stone plant should be erected by the vendee on the lands, and that from the fund created by the erection of this plant, if erected, the vendee was to have the right to pay the balance of the purchase money due on the land. But the erection of the stone plant by the vendee formed no part of the consideration for the transfer of the land by the vendors to him. The contract merely gave him the right to pay the balance of the consideration due on the property out of the “gross profits” of the stone plant, whatever may have been meant by the use of the term “gross profits.”

The bill alleges that appellants failed to erect the stone plant, as it was understood that they should do, and because of their default in this, and failure to pay the balance of the purchase money due under the deed, they ask that a lien be established on the property conveyed for the $2,500 unpaid purchase money. We think they clearly have this right. Appellants cannot defeat the appellees in the collection of the balance of their purchase money by failing to establish a stone plant, out of which to create a fund to pay the balance due as purchase money for this property. There is nothing in this contract-which binds the appellees to look alone to the proceeds of the stone plant for the payment of the balance of the purchase money due under the contract of • sale. If appellants had erected the stone plant, appellees had the right to have the balance due them paid out of the proceeds of the plant; but, the appellants failing to erect the plant, appellees had the right to resort to. the land anyway.

It is true that some allegations in complainants’ bill conflict with the exhibits filed, and it is also true that this court has held that where this is the case the exhibits control; but, after eliminating those parts of the bill that conflict with the exhibits, the record still shows that there was $2,500 due as purchase money, and that it was unpaid. This being the case, a good case is made out by the remainder of the bill and exhibits. The contract specifies no particular time when the appellees should erect the plant; but it was certainly contemplated by the parties that the plant should be erected and put in operation in some reasonable time, and since the bill alleges a total failure to erect the plant, and it is demurred to, no question is raised in the record as to whether or not a reasonable time has passed. Hall v. Eastman & Gardner Lumber Co., 89 Miss., 588, 43 South., 2.

Affirmed and remanded, with leave to answer in sixty days after mandate is filed.