41 Miss. 602 | Miss. | 1868
delivered the opinion of the court.
The bill in this case alleges: That in the year 1860, Mary E. Russell was the owner in her separate right, and held as her separate property, under the laws of this State, certain real estate, with the buildings thereon, lying in the county of Carroll ; that the said lands were given to her by William Booth, her father, as a marriage portion ; that said Booth neglected to execute a deed for said lands to his daughter, Mrs. Russell, and never made any written conveyance of the legal title, or any written memorandum of said gift, until called on by Russell and wife to make a deed £o one Jack Moore, in the year 1860 ; that she was placed in possession in the year 1848, and after erecting all of the improvements which were upon the place, continued to occupy the same as a residence until the sale to Moore; that on the 14th day of January, 1860, Russell and wife sold to said Moore, and procured the said Booth to make a deed for the said lands directly to Moore; that the price agreed to be paid by Moore was $2250 or $2500, blit which of said sums not precisely remembered; that Moore has never had his deed recorded; that all of the purchase-money, except $675, has been paid by Moore, which amount, with interest from the date of sale, remains due and unpaid; that on the-day of-, 1860, Moore sold said lands to one George Yasser, and attempted to convey title to Yasser, but conveyed a wholly different and distinct tract of land; that Yasser well knew at the time of his purchase from Moore that the purchase-money due from Moore to Russell and wife had not been paid in full, and that a certain balance remained unpaid; that repeated attempts were made to secure the payment of the said balance due by Moore from the purchase-money due by Yasser about the time of his purchase, with the concurrence of Yasser, which attempts were frustrated by circumstances over which Yasser had no control; that there is a much larger amount due from Yasser to Moore’s estate than is due to Russell and wife.
. The defendants demurred to the bill for the following causes:
1. That from the bill it appears that "William Booth was the grantor in the deed to Jack Moore, and that no lien arises from said deed in favor of the complainants.
2. That if it be true, as alleged in said bill, that the said land belonged in law or equity to the said Mary E. Russell, then the sale was void for want of a conveyance by her to said Moore, according to law.
3. The bill is uncertain and ambiguous as to stating who was the owner.
Upon the hearing, the Chancery Court sustained the demurrer, and pronounced its decree accordingly.
The demurrer necessarily admits as absolutely true all of the material allegations of the bill. It is assumed in the argument, as well as by the demui'rer, that the terms grcmtor and vendor are pi’ecisely synonymous. Is this so ? A grcmtor is one who gives, bestows, or concedes a thing, and in legal parlance is under-' stood to he the party who makes and executes a deed or conveyance.
A vendor is a seller; a person who disposes of a thing for money.
Who was the seller ? who disposed of the thing ? who actually delivered possession of the thing sold, and received that portion- of the consideration-money which was paid at the time of sale ? Most certainly it was not Booth, the grantor ; but Russell and wife, the vendors. Booth was nominally grantor, it is true, but without an interest. He was in no proper sense, however, a vendor.
He was the mere contrivance or instrument made use of for the purpose of transferring what belonged to, and had been sold and disposed of by another party.
The court has in effect decided this very point in the case of Holloway v. Ellis, 25 Miss. 103. In that case the court enforced a vendor’s lien in favor of Ellis, who purchased of Sargent, without taking a deed. Ellis afterward sold to Cook, agreeing
Here the legal title never was in Ellis, but he was a seller— a vendor — without being a grantor, and his lien as such was recognized and established. . Not only is this the-r-ple in Mississippi, but it is remarkably well defined in other States. Stewart v. Hutton, 3 J. J. Marshall, 178; Ligon v. Alexander, 7 id. 289.
It is urged by the demurrer, also, that even, admitting Mrs. Russell was the holder of the legal or equitable title, the sale was void for want of a conveyance -according to law. This position is wholly untenable both in law and fact, for the contract was not absolutely void, but. only voidable. As to the question of fact, it is alleged in the bill, an,d by the rules of law admitted by the demurrer, that a written conveyance was made and fully executed according to law, by the delivery of the deed to'Moore, which he accepted. He is precluded from going behind it,- nor can any person claiming under him inquire whether the original parol gift from Booth to Mrs. Russell could or would have been enforced as against the donoi', had he refused performance. Nor is it necessary for this court to determine whether Mrs. Russell, by upwards of ten years adverse possession under the statute of 18íé, had acquired the legal title to said lands.
It is immaterial, so far as the present controversy and parties are concerned, whether her title was a legal or an equitable one, as this was a question exclusively between the father, and daughter, which was not made at a time when it could have been urged, and now that the gift from Booth has been carried out and perfected in good faith, and the contract from Russell and wife to Moore has been completely executed, it is impossible to raise the question — it would be useless folly to discuss it.
It seems to us that no case ever appealed more directly and strongly to the conscience of a chancellor. The money is admitted to be due from Moore to Russell and wife, - and ■ from Vasser to Moore, who admits that he had notice, and is still in the possession and enjoyment of the lands sold. No person can be injured by establishing the vendor’s lien in this case, in even the slightest possible degree.
