Loving v. Bridewell , 126 Miss. 134 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

L. O. Bridewell owned a homestead of sixty seven acres upon which he lived with his Avife, and he and his Avife executed a deed of trust on said lands to Mrs. C. G. Bridewell. Subsequent to the execution of the deed of trust Bridewell, died and left a will in which he devised the said property to Nat Bridewell. Subsequently Mrs. Bridewell assigned the deed of trust to one G. W. Seal, and, default having been made in the payment, Seal had the land sold under the deed of trust and at the said sale purchased the property. Thereafter/a bill was filed in the chancery court by Nat Bridewell against Mrs. C. G. Bridewell, Lee Bridewell, and G. W. Seal to cancel the said deed of trust and trustee’s deed. Seal filed an ejectment suit in the circuit court to obtain possession of the said land. While these two suits were pending an agreement was entered into in the following words:

“This agreement by and between Nat Bridewell and Mrs. C. G. Bridewell, Lee O. Bridewell, and Geo. W. Seal, represented O. Y. Hathorn, attorney of record and in fact for the said Mrs. O. G. Bridewell, Lee O. Bridewell, and Geo. W. Seal, witness that in consideration that the said Nat. Bridewell has agreed that the said Mrs. O. G. Bridewell, Lee Bridewell, and Geo. W. Seal may take a decree denying to the said Nat Bridewell relief in the case now pending in the chancery court of Copiah county, Miss., and styled Nat Bridewell v. Mrs. C. G. Bridewell et al., and has also agreed that at the next term of the circuit court of said county a judgment may be taken by the said Geo. W. Seal, plaintiff, in that certain cause therein pending, styled Geo. W. Seal v. Nat Bridewell, said judgment in ejectment to be stayed and not executed until on and after December 1, 1919, the said George W. Seal hereby agrees with the said Nat Bridewell by and through his said attorney, C. V. Hathorn, that if the said Nat Bridewell shall pay to the said attorney for the said Geo. W. Seal on or before the 1st day of December, A. D. 1919, the sum of eight hundred dollars ($800), the said Geo. W. Seal will upon the payment of said sum to his said attorney execute and deliver to the said Nat Bridewell á good and sufficient warranty deed to that certain land and property described in said suits as Southeast quarter sec. 21, less ten acres on north side, and seven acres in Southwest corner of Southwest quarter of Southwest quarter of section 22 and Northwest quarter of Northwest quarter, less ten acres on east side of section 27, all in thownship 9, range 8 east, in said county of Copiah, or, if .desired by the said Nat Bridewell, it is agreed that said deed will be executed by the said Geo. W. Seal and placed in escrow with the Merchants’ & Planters’ Bank of Hazlehurst, Miss., to be by them held and delivered upon payment of said sum to the account of the said Geo. W. Seal or his attorneys. If the said Nat Bridewell should fail to raise said sum and pay the same on or before December 1, 1919, then this agreement to convey said property by Geo. W. Seal to be void, but, if said sum is raised and paid as aforesaid, then to be binding and of full force and effect.”

Under this agreement a final decree was taken in the chancery court dismissing the bill, and a final judgment was taken in the circuit court in favor of the plaintiff, Seal, with a stay of execution until December 1, 1919. . In the fall of 1919, prior to the date fixed for the payment of money under the above agreement, the attorneys for Mrs. O. G. Bridewell, Lee O. Bridewell, and G. W. Seal addressed a letter to Nat Bridewell calling his attention to the maturity of the option or contract entered into as above stated, and requested information as to whether Nat Bride-well expected to avail of the option granted, and, if not, they desired to dispose of the property to other persons who desired to buy. Nat Bridewell replied, informing the said attorneys that he expected to make the payment, and that he had applied to the Farm Loan Bank at New Orleans for a loan on said property, and that he expected to secure the loan, but he did not know whether it could be secured by the 1st of December, and he desired an extension of the option in order to secure said loan. On the 29th. day of November, 1919, a letter was written by the said attorneys •in answer which read as follows:

“Mr. Nat Bridewell, Beauregard, Mississippi — Dear sir: Your letter of the 24th inst., directed to your brother Lee O. Bridewell, with reference to your, purchase of the land near Beauregard has been turned over to me for attention, as we are handling this matter for him and Mr. Seal.'

“We have written to Mr. Mayes, and he tells us that he is of opinion that your loan will finally go through, but does not know just how long it will take.

“Now you understand, Mr.. Bridewell, that this, matter has been very long drawn out, and we have attempted to give you all the time necessary to perfect your loan with the government. However, we are still willing to hold the matter in abeyance with you until you get a definite answer from the Federal Loan Bank, and of course, if that answer is favorable and they let you have money enough to pay the purchase price, we are still willing to wait a reasonable time, providing you will put up for forfeiture your fifty dollar Liberty Bond; this bond to be put up with the understanding that if the government makes you a loan on the property, according to your present application, sufficient to pay the eight hundred dollars or if it does not loan you enough to pay the entire eight hundred dollars, if you raise the balance otherwise and pay it at the same time that the government makes you the loan, then the fifty dollars is to' be returned' to you, but if the goyernment refuses your loan or if it makes an insufficient loan and you fail to get up the balance of the money within, say, ten days or two weeks after the government’s action has been taken an<;l the government’s money is available, this fifty dollar Liberty Bond is to be forfeited and go to Mr. Seal, the present owner of the land as liquidated damages.

“If you want to proceed with this understanding, then forward us at once this fifty dollar Liberty Bond, and this letter will evidence our agreement with you, and we will at once notify the bank at Hazlehurst to hold the deed and draft pending the action of the government. We are also today forwarding to Mr. J. B.' Mayes the abstract which we have to the land with instructions as to what to do with it. Now, Mr. Bridewell, if you want this agreement made, let us hear from you at once.”.

The loan was not procured from the bank, and in the month of January, 1920, the appellant, Loving, bought the said land from Seal and Bridewell, and on the 31st day of January, 1920, notified the appellee of such purchase and demanded possession by the 15th day of February, 1920. Upon receipt of this letter Nat Bridewell filed a suit in the chancery court for specific performance of the contract above set out and upon the bill secured an injunction against the appellant and against Bridewell and Seal to restrain them from interfering with his possession of the said premises.

On the hearing it appeared that on the 29th day of November, 1919, the Farm Loan Bank at New Orleans rejected the application for a loan on the report of its inspector, and informed the secretary of the local Farm Loan Association of its rejection, but stated that, if certain improvements were made and more land put in cultivation, they would ber disposed to take the matter up again on being so advised. The secretary of this Farm Loan Association, who was endeavoring to secure the loan for Nat Bridewell, endeavored to get the Farm Loan Bank to make the loan and to rescind its decision, but they declined to do so unless the improvements were made and more land put in cultivation.

• Nat Bridewell also approached Loving, the appellant, in December and tried to induce appellant to make him a loan upon this property. The appellant did not agree so to do, but stated he was winding up some business affairs, and when he got through that he would investigate the matter.

The attorneys for the appellant corresponded with .the Farm Loan Bank with reference to whether the loan had been made, and were informed that it had been rejected and stood rejected on the books of the Farm Loan Bank. He also had some correspondence with Mr. Mayes, the secretary of the Farm Loan Association, and secured similar information as to the status of the said loan.

The appellee testified in the case that- he was expecting to secure a loan from the Farm Loan Bank for as much as five hundred dollars, and that he had arranged to pay the balance and contended that he had no notice of the rejection of his loan by the Farm Loan Bank. But in this testimony he is contradicted by his agent,-Mr. Mayes. The appellee also testified that he did not have the money at the time of the taking of Ms evidence with which to pay the amount called for in the contract.

On the hearing the chancellor held that the above instruments constituted an equitable mortgage and applied the fifty dollar Liberty Bond on the payment of the amount, leaving seven hundred fifty dollars which he decreed to be a lien, with interest thereon at six per cent., and decreed that unless the same was paid Avithin one year the land should be sold, and directed if same Avas paid by Nat Bride-well within that time that the interest of the appellant should be canceled and annulled, and limited all the rights •of the appellant to that of an equitable mortgage, from Avhich decree this appeal is prosecuted.

We are unable to agree with the chancellor in his construction of the instruments involved in this suit. The former decree in chancery and the judgment in the circuit court adjudicated the title to the land in the appellant, BrideAvell, and Seal undertook in the said contract to warrant the title to the said land in case the payment was made, and it was expressly provided that, if the payment was not made, the contract would be void. Nat Bridewell did not owe Seal or Mrs. Bridewell nor Lee Bridewell any debt, and debt is essential to an equitable mortgage. The title to the land was completely vested out of Nat Bride-well by the decree of the chancery court and. the judgment of the circuit court. It is true the decree and judgment Avas consented to out of consideration of the agreement to sell, but Seal had a trustee’s title by a foreclosure proceeding, and this is what was being sold by the contract. The extension of the agreement expressly provided that, if the loan failed and the money was not paid within the time of said extension the Liberty Bond put up as a forfeit should become the property of the appellant as liquidated damages. This contract was an agreement to sell and was hot an equitable mortgage.

This case is easily distinguishable from the cases relied upon by the appellee, and especially from Gannaway v. Toler, 84 So. 129. In that case a check was sent in payment and retained by the grantor without notice until after the time for performance had elapsed, and there was an ability to pay, and the contract would have been carried out, according to the. decision of the court, had the check been refused upon the ground that it was not money.

The judgment will be reversed, the injunction dissolved, and the cause remanded, with direction to the chancellor to dismiss the bill and assess damages for the wrongful suing out of the injunction.

Reversed and remanded.