158 So. 795 | Miss. | 1935
Appellant and appellees made a trade by which appellant was to convey to appellees certain standing timber for a cash consideration of two hundred fifty dollars. The money was paid by appellees to appellant, who thereupon executed an instrument of writing purporting to convey the timber, but the document was drawn in such an imperfect manner as to have no operative effect. Later appellant declined to allow appellees to cut the timber, whereupon appellees filed their bill to reform the conveyance, or, in the alternative, to recover the money paid. Appellant defended on the ground, among other defenses, that the timber in question was a part of his homestead and that the instrument sought to be reformed was not signed by his wife. The court declined to allow the reformation, but decreed under the alternate prayer that appellees should recover from appellant the money paid with interest.
It is a rule almost as ancient as the common law, and with but few exceptions, that where a party has paid money to another as the consideration for a contract and the contract so made is void and unenforceable, so that the consideration wholly fails, the payor may recover the money back in an action of assumpsit for money had and received. Milam v. Paxton,
Appellant contends that the general rule does not apply when the money has been paid upon a contract void under the homestead exemption laws; and he cites Young v. Ashley,
Affirmed.