Hicks v. Sullivan , 127 Miss. 148 ( 1921 )

Smith, C. J.,

delivered tbe opinion of tbe court.

The appellant exhibited an original bill in tbe court below against tbe appellees, who are husband and wife, to establish and enforce a vendor’s lien on certain land conveyed by him to the appellee, Cora Sullivan. The case was heard upon bill, answer, and proof, resulting in a decree dismissing the bill. The bill alleged in substance that the land was conveyed by the appellant to Cora Sullivan by deed reciting a cash consideration of five hundred dollars, but that the real consideration was the conveyance to the complainant by Luther Sullivan of certain other land by a general warranty deed; that the land so conveyed to him by Luther Sullivan was incumbered by deed of trust placed thereon by Sullivan, and that the appellant was compelled to pay the debt secured thereby in order to prevent the foreclosure of the deed of trust; and that the existence of this deed of trust was not known to the complainant at the time he executed the deed to Cora Sullivan. The prayer of the bill is that the defendants be decreed to reimburse the complainant for the expense incurred by him in obtaining the discharge of this deed of trust, and in default thereof that the land conveyed by him to Cora Sullivan be sold for and the proceeds applied to the payment of the debt so due him.

The evidence for the appellant is in accord with the allegations of the bill, except that the consideration of this deed to Cora Sullivan was the conveyance to him by Luther Sullivan of the land described in the bill, and also the payment to him of one hundred dollars in cash and the delivery to him of two cows. He admits receiving the one hundred dollars and one cow, but claims that the other-cow was never delivered to him. At the close of the evidence he asked to be permitted to amend his bill so as to include these additional facts therein, and also a prayer for the recovery of the value of the cow that was not delivered to him. This motion was overruled on the ground that it came too late.

The appellee introduced parol evidence to the effect that when the deeds were delivered Luther Sullivan gave the appellant one hundred dollars and two cows, in consideration of which the appellant agreed to assume the deed of trust on the land then conveyed to him by Luther Sullivan.

Two questions are presented to us by the briefs of counsel for decision: First, should the appellant be allowed to amend his bill? and, second, does parol evidence that the appellant assumed the payment of the debt secured by the deed of trust on the land conveyed to him by Sullivan contradict the terms of the deed by which the land was conveyed within the rule prohibiting the contradiction of a written instrument by such evidence? Since the decree of the court below must be reversed on the second proposition, it will not be necessary for us to decide the first, for, on return of the cause to the court below, the appellant will have an opportunity to amend his bill should he’then desire so to do.

The warranty in the deed from Luther Sullivan to the appellant covered the deed of trust on the land therein conveyed, and any contemporaneous agreement by which it was excluded therefrom, or the payment thereof assumed by the appellant, would necessarily import a new element into the deed, and also contradict its express language; consequently it cannot be proven by parol evidence. Maxwell v. Chamberlin, 23 So. 266; Martin v. Partee, 121 Miss. 482, 83 So. 673.

The decree of the court below will be reversed, and the cause remanded.

Reversed and remanded.