Carmichael v. Parks , 116 Miss. 710 ( 1917 )

Ethridge, J.,

delivered the opinion of the court.

This case was affirmed on a former day without an opinion. 76 So. 578. A suggestion of error was filed, and we have re-examined the record and have reached the conclusion that we were wrong in affirming the case.

Mrs. M. E. Whitten and J. A. Whitten, in their lifetime owned a body of land in Neshoba county, Miss., and prior to their death executed a deed of trust to C. Rosenbaum upon the lands owned, with the exception of the southeast quarter of the southeast quarter, section 10, township 10, range 13 east. The complainants and the defendant Mrs. Parks were children of Mr. and Mrs. Whitten; J. B. Parks being the husband of the defendant Maggie Parks. Mrs. Parks acquired' the deed of trust from C. Rosenbaum by purchase, and after the death of her father and mother had the lands embraced in the deed of trust sold through a substituted trustee, and J. B. Parks bid- in the land at and for the sum of one thousand five hundred and fifty dollars, and thereafter conveyed it to Mrs. Parks, the deed of trust being for three hundred and eighty-five dollars, and about some three years’ interest. Subsequent to the sale by the trustee, Mr. and Mrs. Parks, desiring to sell the land, found a purchaser, but this purchaser was not willing to buy the place unless all of the heirs signed the deed. Thereupon Mrs. Parks wrote Mrs. Carmichael and other of the complainants a letter, containing the following:

Louisville, Miss., Nov. 22, 1905.

“Dear May: You will find enclosed a deed for the place Mr. Parks bought the place when sold at one thousand ■ five hundred and fifty dollars, and is going to sell to another man for two thousand dollars but he is a little ignorant and thinks the deed will not be good unless all of you sign it. Saydee, Mollie and I signed but Dora was not dressed when Mr. Rodgers went down and could not but will and then we will have to send to John, Prank and Tate. But here now understand Mr. Parks is going to give you all the benefit of the four hundred fifty dollars over what the place sold for. The deed to him now is perfectly good, only to satisfy this man that he wants you all to sign. You will have to sign before an officer, and it will be about a twenty-five cent or fifty cent. cost. But you see by you all doing this he will give four hundred and fifty dollars when if not the place will only be one thousand five hundred and fifty dollars. Now attend to this matter and return by return mail as we want the others to by the 15th, of December. Now May do not think that you are getting yourself into anything by this for you are not and any way the deed to Mr. Parks is good anyway and if you do not. sign you will cut yourselves out of four hundred and fifty dollars. Get Ben to explain if you do not understand. This is just to get the man to be satisfied, while the deed to him is good as it is but he does not understand it. So sign and return,” etc.

‘ ‘ Lovingly,

Maggie. ’ ’

The deed inclosed with this letter in fact contained all of the land of Mr. and Mrs. "Whitten, including the southeast quarter of the southeast quarter, section 10, township 10, range 13 east, above mentioned. The testimony in the record shows that the heirs did not know the lands by description, and shows that they were under the impression and understanding that they were conveying the land sold under the deed of trust and not selling the southeast quarter of the southeast quarter, upon which the old family residence was situated. The bill attacked the trustee’s sale and attacked the appointment of the substituted trustee and the good faith of the purchasers from Mr. and Mrs. Parks, and the record is somewhat complicated.

We think the letter above set out tended to assure the complainants that the trustee’s deed was all right, and that the land embraced in the deed which they signed only embraced lands in the trust deed, and that, under the most favorable view for the appellees, the deed to them was signed without knowledge of the fact that the southeast quarter of the southeast quarter, containing the homestead, was embraced in the deed; and while the deed signed by the heirs to Mrs. Parks would be good as to bona-fide purchasers of the land, it would not estop the complainants from asserting their rights to the southeast quarter of the southeast quarter, or from receiving the value of such land. The chancery court should have granted the relief prayed for as to this land, and to this extent the decree will be reversed, and the cause' remanded.

Reversed and remanded.