Morton v. Varnado , 127 Miss. 332 ( 1921 )

Cook, J.,

delivered the opinion of the court.

The appellant, A. T. Morton, by bill in chancery seeks the specific performance of an optional contract for the sale of certain lands to him by appellee, and from a decree dismissing the bill this appeal was prosecuted.

It appears from the record that appellee was the owner of a certain house and lot in the town of Magnolia, and on the 12th day of December, 1918, she leased this property to appellant for the period beginning January 1, 1919, and ending December 31, 1919, at and for an annual rental of one hundred and eighty dollars. The year’s rent was paid in one sum, and appellee executed a certain instrument of writing in favor of appellant in the form of a receipt for this rent and. containing a further stipulation or agreement that, if appellant should decide to purchase the property at any time during the rental period, he might do so at and for the sum of two thousand five hundred dollars, and in that case the sum of one hundred and eighty dollars paid as rent would be applied' as part payment of the purchase price, and that upon the payment of the balance of two thousand three hundred and twenty dollars appellee would execute her warranty deed conveying the property to appellant.

Prior to the execution of this agreement appellee was employed by the Magnolia Bank, but shortly thereafter she removed to New Orleans and there secured employment with the Carrollton Feed Company where she continued to work until on or about December 1, 1919. During all of the year 1919 she resided at the same address in New Orleans, and during that time she was in frequent communication with the Magnolia Bank and with W. L. Brock, her agent in Magnolia. It is also in evidence that she wrote one letter to appellant in refei*ence to the option, but this letter was not answered. On December 1, 1919, at the instance and request of appellant, W. L. Brock prepared a deed conveying the property and inclosed it with a letter to appellee advising her that appellant had decided to exercise his option to purchase the property, and requesting her to execute the deed and return to Brock, or to the Magnolia Bank with instruction to deliver it to the wife of appellant upon the payment of the balance of two thousand three hundred and twenty dollars. This letter was received by appellee, but she did not execute and return the deed as directed. Appellee testifies that on December 14th she mailed a letter to appellant advising him that she had received the deed, but had not signed it for the reason that no money was sent with the deed, and that, when the money was sent to her or to the.Hibernia Bank of New Orleans, she would execute and deliver the deed. Appellant testified that he did not receive such a letter. Appellant testified that between the 20th and 31st of December, by letter addressed in care of the Carrollton Feed Company, by a personal visit, and by telephone, he made repeated efforts to locate appellee in New Orleans, but at no time did he make any inquiry at her residence address, where she testifies she was during this entire, time. On the night of December 31st, or the morning of January 1,1920, appellee came to the home of a relative near Magnolia, and on the same day appellant filed his bill of complaint.

The bill contains a recital that complainant brings into court and tenders to defendant the sum of two thousand three hundred and twenty dollars, the balance of the purchase price, but there was no tender of any money with the bill. Fifteen days after the bill was filed complainant filed with the clerk of the court his personal check for two thousand three hundred and twenty dollars, but at no time was any money tendered into court. Under the authority of Watson v. Sawyers, 54 Miss. 64, appellant seeks to justify his failure to tender the money on the ground that, since the appellee was beyond the jurisdiction, the obligation to tender the money was excused, but since no tender had been made prior to the filing of the bill, it was all the more necessary that the money should be tendered into court with the bill of complaint, and, since there was never any tender of the money, the decree of the court below denying the relief sought and dismissing the bill was correct. McAllister v. Moye, 30 Miss. 258; Eckford v. Halbert, 30 Miss. 273; Klyce v. Broyles, 37 Miss. 524; Mhoon v. Wilkerson, 47 Miss. 633; Nolan v. Snodgrass, 70 Miss. 794, 12 So. 583; Collier v. White, 67 Miss. 133, 6 So. 618; Philp v. Dana, 121 Miss. 697, 83 So. 745.

Affirmed and remanded to assess the damages for use, occupation, and waste.

Affirmed and remanded.