Opinion
No. 31539.
January 28, 1935.
1. MONEY RECEIVED.
Generally, where party has paid money to another as consideration for a contract and contract so made is void and unenforceable so that consideration wholly failed, payor may recover money in action of assumpsit for money had and received.
2. HOMESTEAD.
Purchaser of timber on homestead from husband, under bill, to reform document, not signed by vendor's wife, which purported to but did not convey title to timber, could recover money paid to husband as consideration for document, under alternate prayer for return of money paid where contract was void under homestead exemption laws.
APPEAL from chancery court of Monroe County.
HON. JAS. A. FINLEY, Chancellor.
Suit by Isaac Joudon and others against Peyton Fuqua. From a decree in favor of plaintiffs, defendant appeals. Affirmed.
M.C. Young, of Aberdeen, for appellant.
No attempt was made to draw a legal document, but the crude paper was self-sufficient. It reads in such a way that the clear intent is that it was intended and meant only as a mere memorandum.
Equitable correction and reformation of writings is an innovation on the statute of frauds and such cases as this one cannot be taken out and grafted on to the law of equitable reformation.
Brimm v. McGee, 119 Miss. 52, 80 So. 379; McCallister v. Richardson, 103 Miss. 418, 60 So. 570; Queen City Hoop Co. v. Barnett, 127 Miss. 66, 89 So. 819; Rogers v. Clayton, 115 So. 106.
To hold the memorandum not a proper subject for reformation will of itself cut the ground out from under the count for a money decree.
Howie v. Swaggard et al., 142 Miss. 409, 107 So. 556; Hairston v. Jaudon, 42 Miss. 380.
It doesn't seem to be disputed that the land the timber is on is the homestead of the appellant. The wife not having signed the timber sale transaction it is absolutely void, and that would be true if the paper sued on was in proper form. And if money paid on such contract could be recovered that would make it have vitality, and enforce the argument that the fact that it was void for either reason that it was not legally sufficient or that it had as its subject-matter the homestead and recovery should be had by virtue of the nullity of the paper sued on.
Ashley v. Young, 123 Miss. 693, 86 So. 458; Blair v. Russell, 120 Miss. 180, 81 So. 785; Pounds v. Clark, 70 Miss. 263, 14 So. 22; McDonald v. Sanford, 88 Miss. 633, 41 So. 369; Queen City Hoop Co. v. Barnett, 127 Miss. 66, 89 So. 819.
Leftwich Tubb, of Aberdeen, for appellees.
If through fraud, mistake or accident the writing has not been made to speak the agreement of the contracting parties, it will be reformed to truly represent what the parties intended it should; and, when thus reformed, it will be enforced as if originally drawn.
Miles v. Miles, 84 Miss. 624, 37 So. 112; Goodbar Co. v. Dunn, 61 Miss. 618; Dunbar v. Newman, 46 Miss. 231; Norton v. Coley, 45 Miss. 125; Jones v. Levy, 92 Miss. 551, 46 So. 825; 23 R.C.L., Sec. 27, p. 335; 23 R. C.L., Sec. 52, p. 354; 65 Am. St. Rep. 481; Annotated Cases 1914D, p. 227; 28 L.R.A. (N.S.), p. 896.
A court of equity will interpose and correct a mistake of fact even though the parties used the very terms they designed to use.
Miles v. Miles, 84 Miss. 624, 37 So. 112; Brumm v. McGee, 119 Miss. 52, 80 So. 379; Birchett v. Anderson, 160 Miss. 144, 133 So. 129; Dunbar v. Newman, 46 Miss. 231; Phoenix Fire Ins. Co. v. Hoffheimer, 46 Miss. 645; 5 L.R.A. 158; 65 Am. St. Rep. 491; 28 L.R.A. (N.S.) 877.
It is well established that relief will be given against a mistake as to the legal sufficiency of the description.
Goodbar Co. v. Dunn, 61 Miss. 618; Sparks v. Pittman, 51 Miss. 511; 28 L.R.A. (N.S.) 785.
Mistake on one side and fraud or inequitable conduct on the other is for all intents and purposes the same as a mutual mistake.
Becker v. Dunagin, 113 Miss. 338, 74 So. 275; Am. St. Rep. 484; 28 L.R.A. (N.S.) 851; Miles v. Miles, 84 Miss. 624, 37 So. 112; Newman v. J.J. White Lumber Co., 162 Miss. 581, 139 So. 838; Stevenson v. Swilley, 156 Miss. 552, 126 So. 195; Jones v. Levy, 92 Miss. 551, 46 So. 825; Brumm v. McGee, 119 Miss. 52, 80 So. 379; Dunbar v. Newman, 46 Miss. 231.
This court will not reverse a case where the correct decision is reached although insufficient reasons may have been assigned therefor.
Torrey v. Fisk, 10 S. M. 590; Y. M.V.R.R. Co. v. Adams, 81 Miss. 90, 32 So. 937; Gwin v. Williams, 27 Miss. 324; Carr v. Miller, 162 Miss. 760, 139 So. 851; Y. M.V.R.R. Co. v. Hawkins, 104 Miss. 55, 61 So. 161.
The courts have always permitted the vendee to recover the consideration paid on a void contract if that view is taken. The effect of the statute touching the conveyance of homesteads is to render the conveyance void, but that does not prevent the vendee or the purchaser from recovering the sum he may have paid on the void contract.
Washington v. Soria, 73 Miss. 665, 19 So. 485, 55 Am. St. Rep. 555; Duff v. Snyder, 54 Miss. 245; 25 R.C.L. 725, para. 372 and 727, para. 375; Fronkling v. Berry, 125 Miss. 763, 88 So. 331; Simms v. Hutchins, 8 S. M. 328; Beaman v. Buck, 17 Miss. 207; Welch v. Lawson, 32 Miss. 170; Milam v. Paxton, 160 Miss. 562, 134 So. 171; 27 C.J. 360, Sec. 438; 66 C.J. 1461, Sec. 1547.
Appellant and appellees made a trade by which appellant was to convey to appellees certain standing timber for a cash consideration of two hundred fifty dollars. The money was paid by appellees to appellant, who thereupon executed an instrument of writing purporting to convey the timber, but the document was drawn in such an imperfect manner as to have no operative effect. Later appellant declined to allow appellees to cut the timber, whereupon appellees filed their bill to reform the conveyance, or, in the alternative, to recover the money paid. Appellant defended on the ground, among other defenses, that the timber in question was a part of his homestead and that the instrument sought to be reformed was not signed by his wife. The court declined to allow the reformation, but decreed under the alternate prayer that appellees should recover from appellant the money paid with interest.
It is a rule almost as ancient as the common law, and with but few exceptions, that where a party has paid money to another as the consideration for a contract and the contract so made is void and unenforceable, so that the consideration wholly fails, the payor may recover the money back in an action of assumpsit for money had and received. Milam v. Paxton, 160 Miss. 562, 570, 134 So. 171. To quote the ornate language of a distinguished jurist of the earlier days (NISBET, J., in Culbreath v. Culbreath, 7 Ga. 64, 50 Am. Dec. 375), the rule has its foundations in "that naked and changeless equity which forbids that one man should retain the money of his neighbor, for which he paid nothing, and for which his neighbor received nothing; an equity which is natural — which savages understand — which cultivated reason approves, and which Christianity not only sanctions, but in a thousand forms has ordained."
Appellant contends that the general rule does not apply when the money has been paid upon a contract void under the homestead exemption laws; and he cites Young v. Ashley, 123 Miss. 693, 86 So. 458. That case holds that had appellant, joined by his wife, sued to cancel the void conveyance, or to enjoin appellees from entering thereunder, it would not be necessary first to repay or tender the money received; but none of the considerations upon which the opinion in Young v. Ashley rests will prevent a strictly personal judgment against the husband who received the money, for the reason that the judgment so obtained cannot be in any way enforced against the homestead.
Affirmed.