Evans v. Sharbrough

64 So. 466 | Miss. | 1914

Smith, C. J.,

delivered the opinion of the court.

Appellant contracted in writing to purchase the property here in controversy from appellee for the sum of one thousand dollars, payment to be made in monthly installments, and the deed to be executed when the entire sum should be paid. After paying something over seven hundred dollars, she filed her bill in the court below seeking to cancel this contract on the ground of fraudulent representations made to her by appellee at the time it was entered into, and praying that appellee be directed to repay her the money which she had paid him, with interest. When the cause came on for hearing, the contract was canceled; the decree of the court below also providing “that W. H. Bufkin, clerk of this court, be and is hereby appointed a master to take evidence as to the length of time complainant occupied said premises, and as to a reasonable rental value of same for said time, and that said master shall charge to defendant seven hundred and forty-five dollars and eighty cents, with interest at six per cent, from the date of each payment, and charge to complainant what he shall find to be reasonable rental value for said premises and taxes paid by the defendant, with interest aforesaid, and to state an account between said parties, and make his report to the chancellor in vacation within' sixty days from this date. ’ ’ From this decree, there was both a direct and cross-appeal in order to settle the principles of the cause.

Two grounds of appellee’s objection to the decree of the court below are, first, that it is not supported by the evidence, and, second, that the contract should not be canceled, for the reason that he cannot now be placed in the same situation he was at the time the contract was entered into, because a dwelling situated on the land at the time he turned it over to appellant was destroyed by fire while in her possession. With reference to the first of these grounds, it will be sufficient to say that the decree of the chancellor was rendered on conflicting evidence, and, with reference to the second, that it is clear from the record that the burning of the house was not presented to the chancellor either by the pleadings or the evidence as a ground for refusing to cancel the contract. The fact that the house burned is only incidentally referred to in the testimony of appellee himself.

Another ground of appellant’s objection to the decree is that the court erred in directing the master to charge her with rent for the premises, and with the taxes paid by appellee. The court committed no error in charging her with the rent on the premises for the time she was in possession thereof (Grant v. Lloyd, 12 Smedes & M. 222), but did err in charging her with the taxes paid by ap-pellee. The court, by charging her with rents, placed appellee as near as possible in the same position he would have been had he never sold the land, and, had he continued to own the land, he would have necessarily been compelled to pay the taxes thereof.

The decree will be reversed in so far as it directs the master to charge appellant with the taxes paid by appellee, but in all other respects will be affirmed and remanded.

Reversed in part; affirmed and remanded.