Opinion
No. 36436.
May 5, 1947. Suggestion of Error Overruled September 22, 1947.
1. BANKS AND BANKING. Torts.
Where deeds of mineral interest and drafts for the consideration were delivered to bank by escrow agent for transmittal to drawee and collection and one deed contained a typographical inadvertence, action of cashier in prevailing upon grantor to withdraw one deed and to deed the interest to the cashier and another was tortious, rendering the bank, cashier and the new grantee liable to the drawee for nondelivery of the deed.
2. PRINCIPAL AND AGENT.
Where deeds of mineral interests and drafts for consideration were delivered to bank for transmittal to drawee and collection, and cashier, on noticing a typographical inadvertence in one deed, prevailed upon grantor to withdraw such deed and to convey interest to cashier and another, new grantee was liable to drawee for the tortious conduct of the cashier on theory of ratification where he retained benefits of transaction.
3. FRAUDS, STATUTE OF.
Where deeds of mineral interests and drafts for consideration were delivered to bank for transmittal to drawee and collection, and cashier on discovering a typographical inadvertence induced grantor to withdraw one deed, and to convey interest to cashier and another, in suit by drawee to recover document as originally written, defense of statute of frauds was unavailable on theory that deed was valueless, where by admission of all, there was a mutual mistake caused by scrivener and reformation, if required, was available.
4. TRUSTS.
Where deeds of mineral interests and drafts representing consideration were delivered to bank for transmittal to drawee and the cashier on noticing a typographical inadvertence in one deed induced grantor to withdraw deed and to convey the interest to cashier and another, both cashier and the new grantee by ratification became trustees ex maleficio of the interest and held their respective titles in trust for the drawee.
5. APPEAL AND ERROR.
In a chancery case, where chancellor erroneously dismissed bill at conclusion of complainant's testimony, a remand to allow one defendant to offer further testimony would not be in order irrespective of whether such defendant rested his case at the conclusion of complainant's testimony, or made a separate motion to exclude and for a decree.
6. DAMAGES.
Where deeds of mineral interests and drafts for consideration were delivered to bank for transmittal to the drawee and collection, and cashier, noticing a typographical inadvertence in one deed, induced grantor to withdraw deed and convey interest to cashier and another, in suit by drawee for tortious interference with the transaction, award of damages arising out of an enhancement in the market value of the minerals conveyed on a mere probability that a possible resale could be made was unauthorized.
APPEAL from chancery court of Adams county. HON. R.W. CUTRER, Chancellor.
Brandon, Brandon, Hornsby Handy, of Natchez, for appellant.
The contract between the appellant and the appellee McCaleb was executed and complete. The same was not subject to rescision by the appellees McCaleb.
President, etc., of City of Natchez v. Minor, 9 Smedes M. (17 Miss.) 544, 48 Am. Dec. 727; Liddell v Sims, 9 Smedes M. (17 Miss.) 596; Lewis v. Starke, 10 Smedes M. (18 Miss.) 120; Pierce v. Jarnagin, 57 Miss. 107; Smith v. Federal Land Bank of New Orleans, 178 Miss. 600, 173 So. 673; Hamner v. Cocke, 186 Miss. 567, 191 So. 429; Leonard v. Austin, 2 How. (3 Miss.) 888; Cummings v. Steele, 54 Miss. 647; Langford v. Weathersby, 1 Miss. Dec. 238; Moore v. Crump, 84 Miss. 612, 37 So. 109; Ford v. Smith, 162 Miss. 138, 137 So. 482; Barataria Canning Co. v. Ott, 88 Miss. 771, 41 So. 378; Mosby v. Wall, 23 Miss. 81, 55 Am. Dec. 71; Whitney Central National Bank v. First National Bank of Hattiesburg, 158 Miss. 93, 130 So. 99; Birchett v. Anderson, 160 Miss. 144, 133 So. 129; Brimm v. McGee, 119 Miss. 52, 80 So. 379; Webb v. Mobile O.R. Co., 105 Miss. 175, 62 So. 168; Marsh v. Mandeville, 28 Miss. 122; Lauderdale v. Hallock, 7 Smedes M. (15 Miss.) 622; Ross v. Wilson, 7 Smedes M. (15 Miss.) 753; Jenkins v. Bodley, Smedes M. Ch. 338; McLendon v. Ravesies, 178 Miss. 428, 173 So. 303; Hanna v. Renfro, 32 Miss. 125; Selden v. Coffee, 55 Miss. 41; McManus v. Wilson, 138 Miss. 1, 102 So. 543; Nixon's Heirs v. Carco's Heirs, 6 Cushm. (28 Miss.) 414; Yazoo M.V.R. Co. v. Lakeview Traction Co., 100 Miss. 281, 56 So. 393; Dunn v. Stratton, 160 Miss. 1, 133 So. 140; Kersh v. Lyons, 195 Miss. 598, 15 So.2d 768; Keepers v. Yocum, 84 Kan. 554, 114 P. 1063, Ann. Cas. 1912A, 748; 18 C.J. 186-187, Sec. 70; 22 C.J. 1148, Sec. 1537; 26 C.J. 221-222, Sec. 30 (i); 16 Am. Jur., Deeds, Secs. 160, 164, 165, 168, 170, 171, 237, 246, 262, 411; 19 Am. Jur., Escrow, Secs. 12, 35; 49 Am. Jur. 569, Sec. 349; 68 A.L.R. 5; A.L.I. Restatement, Restitution, Secs. 160, 168, 640.
Appellant was entitled to specific performance on the part of appellees McCaleb and is yet, in addition to being entitled to damages against the appellees McCaleb for their withdrawal of the deed and draft from the bank, entitled to specific performance on their part, to the extent of their present ability to now perform.
Ashton v. Robinson, 49 Miss. 348; Yazoo M.V.R. Co. v. Southern Railway Co. in Mississippi, 83 Miss. 746, 36 So. 74; Stone v. Buckner, 12 Smedes M. (20 Miss.) 73; Mosby v. Wall, supra; Kyle v. Rhodes, 71 Miss. 487, 15 So. 40.
The appellee bank and its executive officer owed this appellant the duty to transmit both mineral deeds and drafts to the Jackson bank and the same acted wrongfully in surrendering one mineral deed and draft to the appellee McCaleb. It committed a greater wrong in interfering with the contract.
7 Am. Jur., Banks, Sec. 231, 232, 234.
The appellee bank, its executive officer Perrault and customer and depositor Marks acting through said cashier of bank and agent of Marks and individually are liable in tort for interference with the contract between the appellant and the appellees McCaleb.
30 Am. Jur., Interference, Secs. 19, 27, 31.
Perrault and Marks, the latter acting through Perrault as agent and associate, must be held to have taken title to that which they procured as trustees ex maleficio.
Calhoun v. Burnett, 40 Miss. 599; Davis v. Bell, 57 Miss. 320; Smith v. Jefferys (Miss.), 16 So. 377; Moore v. Crump, supra; Lampkin v. McCreight, 117 Miss. 658, 78 So. 578; Owen v. Monroe County Alliance, 77 Miss. 500, 27 So. 383; Winn v. Dillon, 27 Miss. (5 Cushm.) 494; Wooldrige v. Campbell, 61 Miss. 634; Rimmer v. Austin, 191 Miss. 664, 4 So.2d 224; 9 C.J.S. 410, Sec. 191; A.L.I., Restatement, Torts, Sec. 766 et seq.; A.L.I., Restatement, Restitution, Secs. 160, 168, 640.
The evidence offered on behalf of this appellant as to offers for minerals under adjoining tracts and sales made of minerals in adjoining tracts should have been admitted in this case for a proper assessment or damages sustained by this appellant.
Annotation, 118 A.L.R. 870 et seq.; 20 Am. Jur., Evidence, Secs. 371, 376.
The statute of frauds is a personal privilege to the contracting parties sought to be charged and is not available to anyone else in a collateral proceeding.
Grisham v. Lutric, 76 Miss. 444, 24 So. 169; Wirtz v. Gordon, 187 Miss. 866, 184 So. 798, 192 So. 29, 309 U.S. 630, 60 S.Ct. 616, 84 L.Ed. 988; 49 Am. Jur. 569, Sec. 349.
Engle, Laub, Adams Forman, of Natchez, for appellee, City Bank Trust Co.
An alteration in the description of the property embraced in a deed, so as to make the instrument cover property different from that originally embraced, whether or not it destroys the validity of the instrument, as a conveyance of the property originally described, certainly does not give it validity as a conveyance of the property of which the new description is inserted. The old execution and acknowledgment are not continued in existence as to the new property. To give effect to the deed as one of the newly described property, it should have been re-executed, reacknowledged and redelivered. In other words, a new conveyance should have been made.
Moewle v. Sherwood, 148 U.S. 21, 37 L.Ed. 350.
A deed is inoperative to convey any property where it is delivered in blank, as to the land intended to be conveyed, and no authority is given to the grantee to fill in description data. Moreover, it has been said that such authority cannot be given by parol, and that a deed with a description filled in in pursuance of oral authority is void by reason of the statute of frauds.
16 Am. Jur. 584, Sec. 261.
In this case there was no valid contract sufficient under the statute of frauds to buy or to sell this mineral interest.
Howie et al. v. Swaggard et al., 142 Miss. 409, 107 So. 556; Milam v. Paxton, 160 Miss. 562, 134 So. 171; Wells et al. v. Brooks, 199 Miss. 327, 24 So.2d 533; Code of 1942, Sec. 264 (c).
The delivery of the deed in escrow was not sufficient to take the oral sale out of the statute of frauds.
19 Am. Jur. 428, 429, Sec. 12, and Pocket Part for 1946, Sec. 12.
In order for a bank to be liable for an officer's act, the act must have been done for the institution.
7 C.J.S. 59, 60, Sec. 166; 9 C.J.S. 410, Sec. 191.
Damages must be such as are susceptible of ascertainment with a reasonable degree of certainty, and must be certain both in their nature and in respect of the cause from which they proceed. The claim for damages in this case cannot meet the test.
15 Am. Jur. 410, Sec. 20.
C.F. Patterson, of Natchez, for appellee, Henry M. Marks.
The chancellor was correct in granting the motion for a dismissal of this defendant, but if in error the cause should be reversed and remanded as to Marks for a new trial in order that he may introduce his evidence.
Partee v. Pepple et al., 197 Miss. 486, 20 So.2d 73; Code of 1942, Sec. 1312.
On appeal from the decree of the chancellor, all reasonable inferences must be indulged in favor of appellees.
Bates v. Strickland, 139 Miss. 636, 103 So. 432; Whitney Central National Bank v. First National Bank, 158 Miss. 93, 130 So. 99; W.T. Rawleigh Co. v. Armstrong, 165 Miss. 380, 140 So. 527; Love v. Hytken, 168 Miss. 194, 150 So. 777.
W.E. Gore, of Jackson, for appellees, Charles H. Perrault and S.B. McCaleb and his wife.
The alleged contract sued on is within the statute of frauds and no parol proof is admissible to aid the description of the interest conveyed.
Waul v. Kirkman, 27 Miss. 823; McGuire v. Stevens, 42 Miss. 724, 2 Am. Rep. 649; Scherck v. Moyse, 94 Miss. 259, 48 So. 513; Paine v. Mikell, 187 Miss. 125, 192 So. 15; Nickerson v. Fithian Land Co., 118 Miss. 722, 80 So. 1; Queen City Hoop Co. v. Barnett, 127 Miss. 66, 89 So. 819; Taylor v. Sayle, 163 Miss. 822, 142 So. 3; Holmes v. Evans, 48 Miss. 247, 12 Am. Rep. 372; Gulfport Cotton Oil, Fertilizer Manufacturing Co. v. Reneau, 94 Miss. 904, 48 So. 292, 136 Am. St. Rep. 607; Code of 1942, Sec. 264.
No exception will be engrafted upon the statute of frauds with respect to the sale of land.
Beaman v. Buck, 9 Smedes M. (17 Miss.) 207; Box v. Stanford, 13 Smedes M. (21 Miss.) 93, 51 Am. Dec. 142; Catlett v. Bacon, 33 Miss. 269; Hairston v. Jaudon, 42 Miss. 380; McGuire v. Stevens, 42 Miss. 724, 2 Am. Rep. 649; Gumbel v. Koon, 59 Miss. 264; Tanner v. Walsh, 184 Miss. 147, 183 So. 278; Howie v. Swaggard, 142 Miss. 409, 107 So. 556.
Neither part performance nor any other thing will make any exception to the statute.
Wells v. Brooks, 199 Miss. 327, 24 So.2d 533; Hamilton v. Morrison, 146 F.2d 533.
The subject matter of the alleged contract was an interest in minerals, which is an interest in land. It is well settled that the memorandum, in case of a contract to sell land, must describe the land sold. If an insufficient description is given or there is no description, oral evidence is not admissible in aid of the memorandum, because the court will never receive such evidence both to describe the land and then to apply the description. Although the land is sufficiently described, the memorandum may be insufficient for uncertainty in the statement of the interest therein which is to be conveyed.
Dutrel v. Mullens, 192 Ky. 616, 234 S.W. 192, 20 A.L.R. 361; Taber v. Pettus Oil Refining Co., 139 Tex. 395, 162 S.W.2d 959, 141 A.L.R. 808; 49 Am. Jur. 652, 655, 656, Secs. 342, 347, 348.
The value of property cannot be shown by offers made by would-be purchasers.
Illinois Cent. R. Co. v. LeBlanc, 74 Miss. 650, 21 So. 760; Johnson v. Tootle, 126 Miss. 21, 88 So. 406; Yazoo M. V.R. Co. v. Levy Sons, 141 Miss. 199, 106 So. 525; Board of Levee Commissioners v. Dillard, 76 Miss. 641, 25 So. 292; Louisville, New Orleans Texas Railway Co. v. Ryan, 64 Miss. 399, 8 So. 173; Jones on Civil Evidence (3 Ed.), Sec. 168.
See also Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167; 15 Am. Jur. 410, Sec. 20.
Whatever rights Grantham might have acquired must rest on the deed as he drew it. The apple has no stem. He had no contract and neither McCaleb nor Perrault can be compelled to convey land or any interest in it without a contract. Nor can either of them be made to respond in damages for the violation of nothing. The deed which was changed by Perrault and McCaleb did not bind Mrs. McCaleb, because she was not consulted about it. Neither McCaleb nor Perrault nor both of them had any power to convert a nullity into a deed which affected her homestead rights. Since the record shows that she received none of the benefits whatever, the proceeds having been turned over to McCaleb, she might have a right of action against Perrault and her husband, but Grantham has none against her or either or both of them.
Argued orally by Gerard H. Brandon and O.M. Hornsby, for appellant, and by C.F. Patterson and W.E. Gore, for appellees.
Appellant contracted with appellee McCaleb for the purchase from the latter of an undivided 100/464.6 mineral interest in certain lands situated in Adams County. The deeds were prepared as two separate but similar instruments covering 50 mineral acres each, and were executed by McCaleb and his wife on March 29, 1945. The deeds were prepared upon a usual printed Mineral Right and Royalty Transfer form, to wit: No. R-101, which contained blank spaces for insertion of the interest to be conveyed.
There is no conflict in the record as to the intent of all the parties that the above interest was to be, and that they understood it had been thereby, conveyed. However, in preparing the deeds the agreed fraction, 50/464.6, was in both deeds placed in the blanks reserved for the name of the grantee, and in a later blank, designed for the quantum of interest conveyed, the figures "50" were inserted. This sentence as completed read, therefore as follows: "* * * does grant, sell and convey unto the grantee an undivided (50) interest" in and to the minerals described.
The agreed consideration for each deed was $1,250.00. Such amounts were represented by two fourteen day drafts upon the Deposit Guaranty Bank Trust Company, of Jackson and after execution thereof and endorsment by the payee McCaleb, were delivered to the tax assessor of the county, who was directed by the parties to deliver same to the City Bank Trust Company, of Natchez, for transmittal and collection in due course. They were delivered to it in a sealed envelope and came into the hands of the bank's cashier, C.H. Perrault, Jr., who opened it and examined the attached deeds. He discovered the typographical inadvertence and called it to the attention of McCaleb, who agreed to its correction.
During the discussion with McCaleb, Perrault disclosed his personal interest in the subject matter and induced McCaleb to allow only one deed, as corrected, to go through with its draft for collection, and to withhold the other deed and draft in lieu of which Perrault would pay McCaleb the same amount for two mineral deeds for 25 mineral acres each, to himself and H.M. Marks, respectively. Misgivings, reasonably excited by the proposal, provoked hesitation in the mind of McCaleb but reassurances by Perrault as to his authority in the premises and his expressed willingness to save him harmless, sufficed to allay this concern and the deeds were thereupon substituted. Cf. Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730, 733.
Grantham filed his bill against Perrault, the City Bank Trust Company, the McCalebs and Marks, praying for delivery of the original deed and for the establishment of a trust ex maleficio against Perrault and Marks and for damages. Summarized without technical phrasing, the defenses are (1) that the deeds as drawn were ineffective, void and unenforceable, and (2) that therefore Perrault and McCaleb were authorized to withdraw them from the channels of collection and deal with them as non-existent. The chancellor dismissed the bill at the conclusion of complainant's testimony upholding the two contentions above referred to.
We find that we are unable to agree with the learned chancellor. In the first place the instruments were deposited with the bank for collection. Receipt therefor was executed to the escrow agent, the tax assessor, in the name of the bank. So far as McCaleb was concerned they had been executed and delivered. It was no concern of the bank whether the instruments were valid or not. A gratuitous appraisal thereof by the cashier was no more appropriate than would be an adjudication that a bill of lading attached to a draft covered goods which offended his taste. The drawee of the drafts was entitled to the document as such. Its diversion in transitu was more than officious, it was tortious. Under the circumstances the bank, whose officer thereby thwarted consummation of the transaction, may not escape responsibility. Rhoads v. Peoples Bank Trust Co., 200 Miss. 606, 27 So.2d 552. It would be inconsistent likewise to acquit McCaleb of his grudging complicity.
The liability of Marks it equally clear, although it rests upon additional grounds. Perrault testified positively that he acquainted Marks with the full circumstance surrounding the metamorphosis of the Grantham deed. He knew Perrault was acting and had acted as his agent in such matters. They had in fact discussed the McCaleb minerals. He has retained the benefits of the transaction. More than this he still insists upon an endorsement of his conduct, successfully moved for a dismissal of the bill and seeks to defend this position upon appeal. He does not, and cannot, contradict the testimony of the parties to the waylaying of the document along the highways of collection. Even if it be assumed that he would be willing to contradict the positive testimony of Perrault that he told Marks of the unique history of the transaction he could not deny it was a fact, nor his subsequent knowledge thereof. By this ratification of Perrault's act he draws to himself not only its benefits but its burdens. 2 C.J.S., Agency, Sec. 49; 1 Mechem, Agency, (2) Ed., Section 436.
We do not pursue the contention that the deeds were insufficient as contracts under the statute of frauds. Appellant sued to recover the document as it was written and he complains of the action of the bank and its cashier as well as McCaleb, in withdrawing a delivered instrument which was also an item of collection. We further justify our course in putting aside the statute of frauds by our conclusion that the deed was not valueless. Its error as well as its evident intent were readily and reasonably discerned by Perrault and McCaleb, and the latter, admitting the intention with which it was drawn, consented to its perfection and reformation by simple transposition of figures. In fact one of the deeds so corrected was allowed to continue its course to ultimate delivery and the collection of its attached draft. By the admission of all parties there was a mutual mistake caused by the scrivener and reformation if required was available.
Both Perrault by his act and Marks by his ratification have become trustees ex maleficio and hold their respective titles in trust for appellant. Rhoads v. Peoples Bank Trust Co., supra. Whether Marks rested his case at the conclusion of complainant's testimony or, as he contends, made a separate motion to exclude and for decree, is not therefore important for the reasons above mentioned. Wherefore a remand to allow him to offer further testimony would not be in order. Compare Partee v. Pepple, 197 Miss. 486, 20 So.2d 73.
We keep in mind the possibility that there may have been conveyances by Perrault or Marks prior to the notice of lis pendens which would render it impracticable to re-invest title in Grantham. Against this possibility we enter decree in the alternative. In further view of our finding of the act as tortious on the part of all appellees, except Mrs. McCaleb, as to whom sufficient evidence is lacking, we remand the case for such findings upon the issue of consequential damages against such defendants and in such amounts as may be appropriate. We find no warrant in the record for the allowance of damages arising out of an enhancement in the market value of the minerals conveyed. Mere probability that a profitable re-sale could have been made is not enough.
We decree, therefore, that within thirty days from the date of this, our decree ordered herein, the appellees Perrault and Marks shall re-convey to appellant the respective interests and title acquired from the McCalebs, same being 25 mineral acres each, in default of which the clerk of the chancery court as commissioner shall execute such deeds under Section 1376, Code 1942, as shall be effective to vest the full title and interest acquired by said appellees and impose upon them the same obligations as grantors. Said clerk is further directed to administer the tender made by appellant upon execution of the transfers. If, however, said appellees have prior to the lis pendens notice conveyed any or all of the interests so acquired (as to which the parties hereto are given fifteen days from the date of our decree to make disclosure by proper affidavit filed with the clerk of this Court), the cause will be remanded to be heard upon the further issue of damages referable to tortious acts set out above in such amounts and against defendants as may be found answerable.
Reversed, and decree here for appellant.