96 So. 161 | Miss. | 1923
delivered the opinion of the court.
This is a suit by bill to rescind a land sale and to recover the amount paid as part of the purchase money thereon, and also a cross-bill by the seller to foreclose against the purchasers' for the balance of the unpaid purchase money. From a decree denying the relief sought by complainants, and granting the prayer for foreclosure for the unpaid purchase money asked for in the cross-bill, the complainants below present this appeal.
The appellee, Metzger, a merchant and trader in lands conveyed to appellants, Willie Jones and his wife, Nellie, two ignorant negroes, about one hundred eighty acres of land by special warranty deed. It was understood and believed by all parties to the transaction that, a four-room residence and a bam were located on the land. It is also shown by the record that the appellants believed they were getting a fee-simple title to the land, whereas it an-pears the land was sixteenth section school land, and could not be conveved in fee-simple. The apnellee, Metzger, knew it was school land and that he only owned-a lease-hold estate therein; and he testified that he did not tell appellants
The appellants had many business dealings with appellee, and trusted appellee to prepare the papers and depended upon him to convey the kind of title and the quantity of property that it was understood would be conveyed. It also appears in the record without contradiction that the residence and barn which were supposed to be located upon the land, and which the appellants and appellee thought and understood were located on the land were not situated on the land, but were on adjacent land belonging to other parties. The consideration to be paid for the land by appellants was two thousand dollars, one thousand one hundred dollars of which was paid, leaving a balance of nine hundred dollars past due.
The decisive point presented by appellants for reversal is that the appellants, on account of their ignorance and their trust in the appellee, were misled by him into believing that he would convey a fee-simple title to them, and not a leasehold, and that there was a mutual material mistake between the parties as to the amount and value of the property to be conveyed and the amount actually conveyed in the deed. That is, the understanding between all parties was that the four-room residence and valuable barn were located on the land, whereas these buildings were not upon the land conveyed, but were on adjoining lands belonging to other parties, and that therefore the sale should be rescinded because of the mutual mistake.
After a careful consideration of the record, and without setting out the testimony in detail, we have reached the conclusion that the appellants’ position is well grounded.
The record conclusively shows the appellants were misled in the purchase of the school land by the special warrantv deed purporting to convey the fee-simple title, and were also misled by the mutual mistake of all parties in that they understood the residence and barn were located upon the land in question, but which was on adjoining
The mutual mistake was material, and no doubt can be considered as a contributing cause moving the appellants in the transaction, and that, had they known they were not to get the buildings, nor a fee-simple title to the land, they would not have purchased the land.
Therefore the mutual mistake warrants a rescission of the contract and a return of the money paid by appellants on the purchase price of the land.
The chancellor, it seems, decided the case upon the theory that there was no breach in the warranty of the deed, since it was a special warranty given in good faith; but we do not think the case turns upon that point, but the question is: Was the purchaser misled through mutual mistake as to the buildings being upon the land sold, and whether the seller could convey a fee-simple title to the purchasers as they understood they were getting.
The words “warrant specially” in a conveyance is-merely a covenant that the grantor and his heirs and representatives warrant the title of the property unto the grantee against the claims of all persons claiming through or under the grantor. Nevertheless, such a conveyance may be, and is so in this case, a grant of a fee-simple title.
The deed here involved conveyed no more than the lease of the school lands, which was .not the kind of title the purchasers had the right to believe they were getting; nor did they get the land with the buildings on it as believed were on it by all parties. 12 R. C. L. 305; Parham v. Randolph, 4 How. 435, 451, 35 Am. Dec. 403; Rimer v. Dugan, 39 Miss. 477, 77 Am. Dec. 687; Davis v. Heard, 44 Miss. 50; Estell v. Myers, 54 Miss. 174; Vincent v. Corbett, 94 Miss. 46, 47 So. 641, 21 L. R. A. (N. S.) 85; McNeer v. Norfleet, 113 Miss. 611, 74 So. 577, Ann. Cas. 1918E, 436 Brown v. Coker, 129 Miss. 411, 92 So. 585.
Reversed and remanded.
