83 Miss. 204 | Miss. | 1903
delivered the opinion of the court.
This is a proceeding in chancery by Lowenthal for specific performance of an alleged contract of sale of real estate with Mrs. Keene. By amended bill Eeld and his wife are made parties to a controversy whether Mrs. Keene shall be compelled to convey to Lowenthal or to Mrs. Eeld. Lowenthal claims that there was a prior valid contract to convey to him. Eeld asserts that there was no such binding contract, and that, if there was, it could not affect him or his wife, and that the conveyance should be to Ms wife. The question we decide is whether Low-enthal could compel specific performance if Eeld had never appeared upon the scene. Mrs. Keene was an aged lady, resident in Virginia, but owned a house and half a square of land in the city of Vicksburg, Miss. This property was occupied at the commencement of these proceedings, and had been for ten years before, by Mr. Eeld and his family as her tenants. The tenancy seems to have been quite satisfactory to Mrs. Keene, the rent being always promptly paid. Mr. Paxton was a real estate agent living in Vicksburg, where also Mr. Lowenthal resided. The first movement on the placid surface of the situation is a letter from Mr. Paxton to Mrs. Keene, of date September 22, 1902, saying that he could sell the property for $4,500 cash,
On tbe case stated tbe decree below is reversed, and decree here dismissing tbe original and amended bills, with costs of tbis court and tbe court below on appellee.
Reversed.
Brunini v. Hirsh, for appellee, after the delivery of the foregoing opinion, filed a suggestion of error in this ease, reviewing the correspondence between Mr. Paxton and Mrs. Keene. They say: “The court misconceived the facts in the case. The facts are Peld, on January 20th, 1903, when the original bill was filed, had only paid $100 on account of the purchase money, and has not paid the balance, and never has received a deed to the property. If these are the facts, neither he nor his wife are subsequent purchasers. 23 Am. & Eng. Enc. of Law, p. 572. Lowenthal filed his amended bill, and this was notice to Mr. and Mrs. Eeld of the contract under which he claims. Eeld and wife therefore had notice before they completed the sale by payment and conveyance, as they have not paid the balance or received a deed to this date. We shall now proceed to examine the other question in the case: ‘Was there a binding contract between Mrs. Keene and Lowenthal ?’ .We say there was.” Counsel here enter into a lengthy discussion of the correspondence between Paxton and Mrs. Keene, contending that Mrs. Keene’s letter of December 17, 1902, which is as follows: “Your letter of December 13th received. Would have answered sooner, but have been waiting to hear from Mr. Kelley in regard to my taxes. As yet have not heard from him the amount. Mr. Eeld wrote me that he had not bought the Methodist parsonage, and did not seem to care to make any change. Mrs. G-illand has to be paid $1,000 and interest for six months, and the taxes have also to be paid. Mr. Eeld is to have thirty day’s notice, unless Mr. Lowenthal wants to retain him for a tenant. As soon as I receive notice from the bank that the money is there waiting for me, I will sign the deed, and then you will get your money by the first of January. Mr. Eeld will owe me for December rent” —in reply to Paxton’s letter to her December 13, 1902, creates a binding contract. They say further: “Mrs. Keene had not replied to Mr. Paxton’s letter of November 25, 1902. Her letter of December 17th was also a reply to that letter. Does not the
delivered the opinion of the court in response to the suggestion of error.
We thank counsel for calling our attention to an inadvertence in the last clause in the original opinion in this case. That clause is this: “When the deed came for delivery to Feld on paying the balance of the purchase money, he did not pay until Pax-ton assured both him and his attorney that there was no written agreement to sell between Mrs. Keene and Lowenthal, or any one else.” This might be misleading, inasmuch as the fact is that Feld never did pay the balance of the purchase money, being prevented by this suit, and all that he ever did pay was $100 to Paxton. Our opinion stands notwithstanding this. Really, the court decided the case on the sole question whether Lowenthal could compel specific performance, regardless of the transaction with F.eld; and we decided in the negative, and adhere to that decision, and we shall modify the opinion so as to show this, and nothing more. In fact, the decree ordered in the opinion shows that that, and that only, was decided, and we need not have continued in the opinion to say anything whatever'in reference to Mrs. Keene’s transaction with Feld. We have examined with much care the suggestion of error, the argument in support of which is presented with great force, but fail to be convinced.
Suggestion of error overruled.