33 Miss. 269 | Miss. | 1857
delivered the opinion of the court.
The bill in this case shows, that on the 20th May, 1841, Catlett executed to the Planters’ Bank of Mississippi five promissory notes, for $1294 48 each, payable in five annual instalments, and that on the 19th April, 1841, the Bank had purchased, at execution sale, certain lands of Catlett, and had received a sheriff’s deed for the same, by which the absolute title was conveyed to her, and on the 30th May, 1841, in pursuance of an agreement entered into between the parties, Catlett and his wife executed a deed to a trustee, conveying the same lands in trust for the payment of the notes, the deed containing a stipulation that the Bank should convey to Catlett and wife, or their assigns, the title to the lands acquired by the Bank under the sheriff’s deed, upon the satisfaction of the debt due by Catlett to the Bank. This deed was signed - and executed by Catlett and wife, but not by either the trustee or the Bank. It is further alleged, that in June, 1842, Catlett and wife conveyed the lands to Winslow, in consideration of his agreement to pay the notes mentioned in the'deed of trust and other debts, and that in November, 1842, Winslow conveyed a part of the lands to A. M. Fonte, upon the consideration of $2500 paid in cash, and that Fonte should release and discharge the deed of trust; that the notes were transferred by delivery, by the Bank to the complainants, in June 1842, and that the deed in trust, was duly transferred to them at the same time; that the Bank has been dissolved by judgment of law, and the trustee is dead, and that Winslow and Fonte are in possession of the land.
The bill seeks to hold Fonte and Winslow liable, under the agreements stated in the deeds to them, for the payment of the notes mentioned in the deed of trust, and prays a decree for a sale under
Winslow and Fonte answered the allegations of the bill, and demurred to the relief prayed; and upon the final hearing, a decree was made against Fonte in conformity to the prayer of the bill; from which decree this appeal is prosecuted by him.
We consider it necessary to examine the case only with respect to the demurrer.
Conceding that, by the terms of the deed executed by Winslow to Fonte, the latter became bound to pay the notes of Catlett mentioned in the trust deed, he must be placed in the same position as Catlett, and éntitled to all the rights-which he had, growing out of the transaction with the Bank, as stated in the bill. We have, then, to inquire into the character and legal force of the obligation of Catlett, arising from the deed of trust, to the Bank, as shown by the bill.
It appears by the bill that, when the deed of trust was executed by Catlett to the Bank, the Bank held “the absolute title to the lands” embraced in the deed. The facts stated show that Catlett had not the shadow of a title when he executed the deed, and nothing is shown to explain how it was that the Bank took the deed from him. No right or benefit, therefore, passed from the Bank to him by virtue of the deed, although the land was conveyed by his deed to Winslow, and subsequently to Fonte, except the agreement inserted in the deed, that the Bank would convey to.him upon his paying the notes mentioned in the deed. But it appears that the deed was never signed or executed by the Bank; and it is clear that, under the Statute of Frauds, neither Catlett nor those claiming under him could have compelled the Bank to execute that agreement.
Then it is plain that Catlett acquired nothing by the transaction. The Bank had the absolute title and retained it, without any valid agreement for the benefit of Catlett which could be enforced by law. He had no title, either legal or equitable, which passed by the trust deed for the benefit of the Bank, and by the assignment of that deed by the Bank to the complainants, and nothing which passed by his conveyance to Winslow; and, consequently, the undertakings of Winslow and Fonte, to discharge the deed of trust,
It follows from this, 1st, that the trust deed is invalid as to Catlett for want of consideration, and hence that the assumpsit of Fonte, predicated upon it, is void; and, 2d, that no title passed to the Bank under it which was the subject of assignment to the complainants.
It is no answer to this to say, that Catlett took possession under the agreement. That is not alleged in the bill, and it does not appear but that he had possession before and at the date of the trust deed. But suppose he took possession under the agreement, the case would occupy no better position in behalf of the complainants’ claim, than if the Bank had filed a bill for specific performance against the defendants ; and indeed that appears to be the substantial character of the suit. It would present a case of part performance of a vendor’s parol contract for the sale of lands, by the vendee taking possession ; and it is fully settled in this court, that such a contract cannot be enforced.
But if the Bank was under any obligation to convey the title, such a conveyance was never made by her, and it can never be made, because the corporation has been dissolved. The complainants are incapable of -making the conveyance, because they have not the legal title, and they do not offer to make the conveyance. Nor could the court decree a conveyance, because the parties holding the legal title to the lands are not before the court, and their rights could not be foreclosed. But if they were parties, a decree that they should convey, could not be made against them, because the Bank was under no obligation in law to make the conveyance.
We think it manifest that the bill cannot be maintained. The decree is therefore reversed, the demurrer sustained, and the bill dismissed.
