270 F. 744 | 5th Cir. | 1921
The complainant, Robert E. Townes, a c;ti-zen of Tennessee, filed a bill in equity in the United States District Court for the Northern District of Mississippi against Evelyn Pope Townes, the widow of Charles L. Townes, Jr., deceased, and their minor child, Charlie Townes, born January 25, 1919, both alleged to be citizens of Mississippi, praying to have set aside, as a cloud upon the title thereto, a contract entered into on July 12, 1917, between himself and his brother, Charles L. Townes, which provided, among other things, for a future sale to be made by said Robert E. Townes to said Charles L. Townes of certain property acquired by the said Robert as a devisee under the will of his father, C. L. Townes, Sr.
The record showed that Charles L. Townes, Sr., died testate in 1910 and by his will divided his real estate consisting of cotton plantations among his widow and their three children, to wit, Robert E. Townes, Charles L- Townes, and another child, Mary Plarper Townes, now Mrs. N. Hill Martin. At the death of the father the son Charles was 21 years of age and his brother Robert 7 years younger. Charles was very mature for his years; Robert an impulsive boy. Charles took charge of and managed, exclusively, the entire property. From the time the plaintiff was 8 years old he had resided at Memphis,' Tenn. The planting operations of Charles were successful, and resulted in a considerable income for the complainant. Complainant went to Cornell University, and after graduation went into business as a clerk in Memphis, Tenn. Pie was disposed to be extravagant, and to spend much more money than his brother Charles thought proper, and Charles frequently remonstrated with him on this subject. It appears, however, that he did not exceed the sum derived from his income from his lands, and that a substantial sum to his credit was at all times in the hands of Charles. While Robert’s mother was his guardian, under the will of his father, she has been an invalid for several years, and his affairs were managed by his brother Charles.
In the spring of 1917, complainant, being 21 years of age, volunteered for service in the war against Germany, joining the Aviation Corps of the United States Army, and was ordered to Rantoul, Ill., for training. It appears that in June, 1917, Charles went to Illinois, to Rantoul, and presented to his brother a contract creating a partnership for the planting of said land, together with the adjoining lands of Charles, which was identical in every respect to the contract in this case, except that it recited that in consideration of the advantages and benefit to accrue to him from the partnership agreement the said Robert gave
About the 12th of July, Robert returned to Memphis and made a trip to Mississippi to visit his brother. While there he executed, on July 12, 1917, a contract creating a. partnership between himself and Charles from January 1, 1917, for the term of five years, for the operation of complainant’s lands, together with certain other adjoining lands of said brother — the entire management and all powers of the partnership being vested in his said brother; said contract further reciting that for a valuable consideration, then receipted for, he agreed to sell and to execute and deliver and to give a good and lawful warranty deed on June 15, 1922, to said land and to all the personal property of all sorts situated thereon or owned in the partnership agreement for the consideration of $125,000, $25,000 to be paid on said 15th of June, 1922,, and the balance of said consideration of $100,000 in 10 annual equal installments from January 1, 1924, to January 1, 1933, inclusive, with interest from June 15, 1922, at 6 per cent, per an-num-, payable annually, the plaintiff to retain the usual vendor’s lien upon the property conveyed, and providing for the right of said C. I/. Townes, to pay off any or all of said notes at any time.
The plaintiff averred that the property described was worth at the time $275,000; that no explanation was made to him of the value of the propert)'-; that plaintiff signed the contract without knowledge of the value of the personal property, and with only a vague idea of the value of the land, because his brother not only.requested his signature, but accompanied his demand with a threat that he would cease operating complainant’s property unless.this agreement was made. The plaintiff shortly thereafter was sent for overseas service to France, and was serving there when his brother Charles died on October 15, 1918. '
•It appeared that subsequent to the death of said Charles L. Townes the widow, Mrs. Evelyn Pope Townes, executed to complainant an instrument by which she granted, bargained, sold, released, quit-claimed, and conveyed to the said Robert Townes all of her rights to purchase said property under said contract of July 12, 1917. It was admitted on the trial that the release was executed, and that the averment of her answer denying its execution was inadvertently inserted.
The evidence in the case showed that the deceased, C. E. Townes, was very mature for his j^ears, of a dominant disposition, and an excellent business man; that lie was buying up lands in the vicinity; that in June; 1913, he had purchased the lands derived by his. sister under her father’s will, with all personal property thereon, for $95,000; that on January 1, 1917, he had purchased 826.56 acres from Mrs. Avery for the sum of $82,125. There was evidence that this land was inferior to the Robert Townes land. Evidence was introduced to
The District Court, before whom the case was tried, rendered a decree declaring said contract null and void for the reasons set out in the bill, in so far as it undertakes to obligate the complainant to sell the lands and personal property described in said contract, and revoking said contract as a cloud upon complainant’s title to said property. The appellant insists that the decree is without support in the evidence; that no confidential relation between the parties is shown, and no such inadequacy of price as to raise a presumption of fraud. The ap-pellee insists that the decree is correct; that the evidence was sufficient to show a confidential relationship between the parties; that the agreement to sell was for an inadequate price; that this made a prima facie case entitling the complainant to a cancellation of the agreement, and put the burden on the defendant to show the entire circumstances of the sale, and to affirmatively establi.sh that Charles had fully disclosed all facts in his knowledge respecting the property and its value, and had not exercised any undue influence to induce the making of the contract, and that the absence of any proof as to what transpired between the parties rendered the contract liable to be disavowed and set aside by complainant.
There is no suggestion in the record that there was any desire on the part of Robert to sell. It indicated that the agreement for the sale was due to the insistence of Charles, and that, whether the execution of the agreement to sell was made a condition to the agreement on the part of Charles to run the place under the partnership agreement for five years, such agreement was the inducement to the entering into the agreement to sell the place at the expiration of said partnership term. Charles died, as stated, on October, 15, 1918, a little over a year after the execution of said agreement. The partnership agreement, of course, came to an end by the death of such partner and the performance of the same, to wit, the management of said place during said period by the personal efforts and skill of said Charles Iy. Townes, became impossible.
“Primarily the question whether a contract is entire or severable is one of intention, which intention is to he determined from the language which the parties have used and the subject-matter of the agreement. A contract may both in its nature and terms be severable and yet rendered entire by the intention of the parties.” 13 Corp. Jur. p. 5G2.
“ ‘They [the modern English and leading American decisions] show a -disposition on the part of the Judges to break through the bonds which some of the old cases had imposed upon thorn and to adopt what Lord Kenyon, in one of the cases, calls the common sense doctrine — that the true intention of the parties, as apparent in the instrument, should determine whether covenants are independent or conditional instead of any technical rules of which the parties were totally ignorant, and the application of which would in most cases utterly defeat their intention.* This is, in our judgment, the proper rule of construction.” The Wellsville v. Geisse, 3 Ohio St. 333, 337. See also Lowber v. Bangs, 2 Wall, 728, 736, 17 L. Ed. 768; Gray v. Hinton (C. C.) 7 Fed. 81, Coos Bay Wagon Co. v. Crocker (C. C.) 4 Fed. 577; Sixta v. Ontonagon Valley Land Co., 157 Wis. 293, 147 N. W. 1042, 1045.
We conclude that, in view of all the facts of the case, the decree of the court declaring the contract to be now null and void contains no reversible error, and the decree is therefore affirmed.