Washington v. Soria, 73 Miss. 665

73 Miss. 665 | Miss. | 1896

Cooper, C. J.,

delivered the opinion of the court.

Mrs. Horia exhibited her bill in the chancery court of Harrison county to subject certain land therein described, theretofore conveyed by her to the appellant, Washington, to the payment of the purchase price thereof. The bill, which was filed December 5, 1894, charges that, on July 26, 1887, in consideration of the sum of five hundred dollars to her in cash paid, and of the payment of a like sum'to be made twelve months therefrom, and of the payment of a like sum to be made eighteen months therefrom, she conveyed the land to the defendant, reserving in the conveyance a lien upon the land until payment of the full purchase price; that though the defendant executed no writing promising to pay the deferred payments, he received and put to record the deed, and entered upon and has enjoyed the land thereby conveyed.

The defendant filed a general demurrer to the whole bill, and for causes set forth: 1. No equity on the face of the bill. 2. That the contract sought to be enforced, not being evidenced by any memorandum or note thereof signed by the defendant, is unenforceable, under the statute of frauds. 3. That the claim sought to be enforced is barred by the statute of limitations of three years. 4. That the installment of the purchase money alleged, by the bill, to have been payable twelve months after the execution of the deed, is barred by the six years statute of limitations.

The chancellor entered a decree overruling the demurrer on all the grounds alleged, except the fourth, and on that ground sustained it, but directed the defenda?it to answer over. From this decree both parties appeal.

Before entering upon a consideration of the real questions involved, we will, for the purpose of again calling attention to a growing irregularity in practice, notice the course of pleading and procedure in the court below. The practice seems to prevail in several circuit and chancery districts in this state of filing a general demurrer to the whole declaration or bill, and incorporating therein, as causes of demurrer, objections going not to the whole declaration or bill, but to only specific parts thereof; and the judges and chancellors attempting to conform their judgments and decrees to this wholly unwarranted practice, will attempt to overrule a demurrer in part, and sustain it in part, whereby great confusion and uncertainty results. The rule in modern practice is well settled — that a demurrer to the whole bill is an entirety, and must stand or fall together. Story’s Eq. Pldg., §443; Lube’s Eq. Pldg., § 323. Canton Warehouse Co. v. Potts, 68 Miss., 637. When, therefore, a demurrer to the whole bill is interposed, and some causes are assigned which go to a part only of the bill, such causes should be disregarded by the court; for, if there is no ground of demurrer good to the whole extent of the demurrer, the demurrer should be overruled entirely.

For the purpose of evading the defense arising from the six and three years statutes of limitation, it is contended by counsel for complainant that, because of the statute of frauds, the complainant never had any right of action at law against the defendant for the recovery of the unpaid purchase money of the land, and hence, since a court of equity, will not permit the defendant to retain the land without paying the purchase price, that the only statute of limitations applicable to this proceeding is the ten-year statute, found in § 2763 of the code, by which it is provided that £ £ bills for relief, in case of the existence of a trust not cognizable by the courts of the common law, and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue, and not after,” etc.

The defendant, to avoid all liability, contends (1) that, because of the statute of frauds, no relief could ever have been afforded the complainant, either at law or in equity, and if mis taken in this, then (2) that if there ever was a right of action, it existed as well at law as in equity, and was barred within three years after the time named in the deed for the payment of the deferred part of the purchase price of the land.

The contention of neither party can be maintained. In many jurisdictions it has been held that part performance of an oral agreement takes it beyond the application of the statute of frauds, but this rule was repudiated in this state at an early day, and it has been uniformly here held that part performance is not sufficient to withdraw a case from the control of the statute. Payson v. West, Walker, 515; Beaman v. Buck, 9 Smed. & M., 207; Box v. Stanford, 13 Smed. & M., 93; Bacon v. Catlett, 33 Miss., 269. In Hairston v. Jaudon, 42 Miss., 380, the court of the military commander of the district absurdly held that a vendee in an oral contract for the purchase of land, who had paid $750 of the purchase price, might recover the same back from the vendor, who was willing to complete the contract and tendered a deed with his plea. This never was the law, and that case is overruled.

It is uniformly held that, after full performance of an oral agreement, the statute of frauds does not apply. The statute neither declares an oral contract to be illegal nor void. It does not prohibit the contract, but simply declares that no action shall be maintained to enforce it. Where the contract has been fully executed by one of the parties, and nothing remains to be done by the other than to pay the consideration, relief is very generally afforded at law by permitting the plaintiff to recover, not upon the special contract, but in assumpsit or on the case, upon the promise implied by law, for the statute has no application to promises implied by law. 2 Reed on Statute of Frauds, § 640. Where there has been a special contract fully performed by the plaintiff, he may recover either in case, on the contract or in indebitatus assumpsit for the consideration. Fowler v. Austin, 1 How. (Miss.), 156; Hill v. Robeson, 2 Smed. & M., 541; Cutter v. Powell, 2 Smith’s Lead. Cas., 1, and note; 2 Devlin on Deeds, § 1074. When the vendor has made conveyance of land to the vendee, who has executed no written promise to pay the purchase price, the courts, while uniformly affording relief, are not very well agreed upon what precise ground the right is rested.

In Atlantic Dock Co. v. Leavitt, 54 N. Y., 35, the opinion is finally rested upon the conclusion that the recital of the deed accepted by the grantee that he had sealed the same, was proof of the fact that the grantee had sealed it by adopting as his seal the corporate seal of the grantor. There is, however, much in the opinion suggesting that, in the absence of this recital, the court would have decided that, by accepting the conveyance, the grantee was bound by estoppel to deny that the deed, as a written contract, was his, though it was not signed by him. Mr. Bigelow, in his. work on Estoppel, page 346, thus announces the rule: “ Nor will the grantee in a deed poll, having accepted the deed and estate, be permitted to deny his covenants or that the seal is his, in an action on the covenants. ’ ’

In Trotter v. Hughes, 2 Kern. (12 N. Y.), 74, it was said that ‘ ‘ the acceptance of a conveyance, containing a statement that the grantee is to pay off an incumbrance, binds him as effectually as though the deed had been inter partes, and had been executed by both grantor and grantee. ” “A covenant can only be created by deed, but it may be as well by deed poll as by indenture, for the covenantee’s acceptance of the deed is such an assent to the agreement as will render it binding on him; but the party must be named in the deed poll.” Greenleaf’s Cruise, ch. 26, tit. 32, § 3. The following cases seem to rest upon this ground: Railroad Co. v. Remmy, 13 Ind., 518; Railroad Co. v. Pearce, 28 Ind., 502; Bowen v. Kurtz, 37 Iowa, 240; Crawford v. Edwards, 33 Mich., 354; Grove v. Hodges, 55 Penn. St., 504; Schmucker v. Sibert, 18 Kan., 104; Hubbard v. Marshall, 50 Wis., 322; Long v. Bullard, 59 Ga., 358.

Mr. Platt denies that an action of covenant should be maintained on a deed not sealed by the defendant, but admits that the contrary doctrine has been very generally received by the profession, and is, perhaps, too well established to be reversed. Platt on Cov., 18.

In Finley v. Simpson, 2 Zab. (N. J.), 311, a very great number of authorities are cited in the briefs of counsel, and the court held that the action of covenant might be maintained upon such a deed, citing in support of its opinion Coke on Litt., 231a, 230$, note 1; Sheppard’s Touch., 177; 4 Cruise Dig., 393; 3 Com. Dig., “ Covenant,” (A 1); 4 Com. Dig., “Eait” (A 2); Lb., (C 2); Yin. Abr. ‘‘ Condition, ’ ’ (I. a2); Burnett v. Lynch, 5 Barn. & Cress., 589.

In Lee v. Newman, 55 Miss., 365, Judge Chalmers, in delivering the opinion of the court, in a case not calling for a de7 cisión of the question, declared that there could be no recovery in personam against one who had accepted a conveyance by which it was stipulated that, as a part of the purchase price, he should pay a certain mortgage. The proceeding in that case was to charge the land, and it was not sought to fix a personal liability on the purchaser. The observations of Judge Chalmers would apply as well where the obligation was to pay the purchase price to the vendor as to a mortgagee, and a somewhat extended examination by us has failed to discover any instance in which it has been held that in no form of action could relief be afforded where the vendor has fully executed his contract, by conveying the land, and the vendee has accepted the deed and entered into possession. In Massachusetts it has been held that the technical action of covenant cannot be maintained against the grantee, who has not signed the deed, but that asswnpsit, for the nonperformance of the duty or obligation, may be brought. Goodwin v. Gilbert, 9 Mass., 510; Newell v. Hill, 2 Metc., 180; Dix v. Marcy, 116 Mass., 416; Locke v. Homer, 131 Mass., 93. And such is probably the rule in New Hampshire (Burbank v. Pillsbury, 48 N. H., 475), and Pennsylvania (Clark v. Martin, 49 Penn. St., 289).

With us the forms of action are not material. All rights may be redressed by an action on the case — for it is provided that “the declaration shall contain a statement of the facts constituting the cause of action, in ordinary and concise language; and if it contain sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient, and it shall not be an objection to maintaining any action that the form thereof should have been different.” Code, § 671.

Since the complainant might have brought an action at law against the defendant, her cause of action does not rest upon the ‘ ‘ existence of a trust not cognizable by the courts of the common law,” and it is not controlled by the provision of §2763 of the code, limiting to ten years the period within which suit may be brought. It is governed by § 2762, which declares that £ £ whenever there be a concurrent jurisdiction in the courts of the common law and in the courts of equity, of any cause of action, the provisions of this chapter limiting a time for the commencement of a suit for such cause of action in a court of common law, shall apply to all suits to be brought for the same cause of action in a court of equity. ’ ’

The remaining question is whether the statute of limitations of three or that of six years applies. By §2737 of the code it is provided that £ £ all actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after. ’1 No other period of limitation is prescribed, unless it be by §2739, which is as follows: “Actions on an open account or stated account, not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three years next after the cause of such action accrued, and not after. ’ ’

We are of opinion that the six and not the three years statute applies. The action is not upon a contract provable by parol, but is one provable by a writing. Whether the action which might have been brought at law could have been on the promise contained in the deed, treating it as the deed of the defendant because of his acceptance, and the estoppel operating upon him to deny it to contain his written contract, as the decided weight of authority holds may be done, or whether, as is held by the Massachusetts courts, no action could have been maintained on the déed, but the plaintiff must have sued upon the promise implied by law from the acceptance of the deed by the- defendant, is, we think, immaterial. In either event the promise of the defendant, whether it be express or implied, is to perform a contract, the terms of which are written, and not unwritten. The promise to pay is implied by law, but it is a promise to perform a written, and not an unwritten, contract. So much of the demurrer as invoked the protection of the six years statute of limitations, was directed, not to the whole, but to a part of the bill. No ground of demurrer is alleged which is good to the whole bill, and as the demurrer is to the whole bill, it should have been overruled.

The decree is reversed on the appeal of Mrs. Soria, the demurrer overruled and the defendant requi/red to a/ixswer within thvrty days after the mandate shall ha/ve been filed in the court below.