Opinion
No. 36405.
March 31, 1947.
1. LIENS.
A bill which seeks only to enforce an equitable lien for breach of promise to support is demurrable.
2. EQUITY. Liens. Partition.
Where bill alleged complainant's conveyance to defendant of his interest in property held in common with defendant in consideration of defendant's promise to house and support complainant and that defendant breached agreement, bill was insufficient to authorize either an equitable lien for cost of complainant's shelter, board and maintenance or for partition, but bill stated a cause of action for damages for breach of contract for which a recovery could be had under prayer for general relief and was good against general demurrer (Laws 1946, chap. 317).
APPEAL from the chancery court of Adams county. HON. R.W. CUTRER, Chancellor.
Brandon, Brandon, Hornsby Handy, of Natchez, for appellant.
Where there is a breach by a grantee of his promise or obligation to maintain and support a grantor, constituting the consideration for the deed, equity will not imply a lien where one is not expressly created in the deed.
Dixon v. Milling et al., 102 Miss. 449, 59 So. 804; Lee v. McMorries, 107 Miss. 889, 66 So. 278; Lowrey v. Lowrey, 111 Miss. 153, 71 So. 309; New Orleans Great Northern R. Co. v. Belhaven Heights Co., 122 Miss. 190, 84 So. 178; Wynn v. Kendall, 122 Miss. 809, 85 So. 85; Batson v. Draughon (Miss.), 11 So.2d 203; 13 L.R.A. (N.S.) 725; 43 L.R.A. (N.S.) 920.
A life estate is a freehold interest in the land.
31 C.J.S. 39.
A freehold interest is an estate in land.
27 C.J. 896, footnotes 46A, 49A; 37 C.J.S. 1373.
Partition suit is a statutory action, not dependent on law or equity, hence strictly construed, and appellee must show himself as coming within one of the three classes or parties allowed by our statutes to have property partitioned.
Forest Product Mfg. Co. v. Buckley, 107 Miss. 897, 66 So. 279; Black v. Washington, 65 Miss. 60, 3 So. 140; Code of 1942, Sec. 961.
The language of an instrument is construed most strongly against the grantor, and his rights are determined by the instrument.
Appellee has a full adequate remedy at law for the alleged breach of his contract.
Dixon v. Milling, supra; Lee v. McMorries, supra; Lowery v. Lowery, supra; New Orleans Great Northern R. Co. v. Belhaven Heights Co., supra; Wynn v. Kendall, supra; Batson v. Draughon, supra.
A reservation of a right to a home gives no such possessory right in the premises to the grantor as can be the subject of a conveyance. In other words, the right reserved is purely a personal right as distinguished from an interest or estate reserved in the title to property and, hence, cannot be partitioned.
Fisher v. Nelson, 8 Mo. App. 90. Brown Gwin, of Natchez, for appellee.
The appellee sought by his bill to have the court impress a charge upon the interest in the property of the appellant in an amount equal to the value of the possessory right of which appellee had been deprived and which right was retained by him in his deed, plus the amount of his damage, occasioned by the appellant's failure to comply with the promise contained in said deed, as a part of the consideration therefor, and for a partition of the property. The relief sought then is twofold: First, to impress and enforce the lien, and secondly, for partition of the land. The appellant filed a general demurrer to the bill, assigning that there was no equity on the face of the bill.
Appellee concedes that on the authority of Dixon v. Milling et al., 102 Miss. 449, 59 So. 804, and like cases, that had the bill sought only to enforce an equitable lien for breach of the promise to suport the appellee, it would have been demurrable. The only question then remaining is whether the appellee, under the terms and reservations of his deed, is entitled to a partition of the property here involved. If that question be solved in favor of appellee, then the general demurrer was properly overruled. Appellee submits that the original bill was good as against a general demurrer.
New Orleans N.E.R. Co. v. New Orleans Great Northern R. Co., 107 Miss. 453, 65 So. 508; City of Indianola v. Faison et al., 159 Miss. 520, 132 So. 550; Black v. Washington, 65 Miss. 60, 3 So. 140; Lynch v. Lynch, 196 Miss. 276, 17 So.2d 195; Code of 1942, Sec. 961; Laws of 1946, Ch. 317; Griffith's Mississippi Chancery Practice, Sec. 293, notes 32a, 33, 34, 35; 3 Bouvier Law Dictionary, p. 2398; 1 Restatement of the Law of Property, p. 23, Sec. 9, p. 45, Sec. 18; 21 C.J. 915.
Argued orally by Gerard Brandon and G. Stuart Handy, for appellant, and by Jos. E. Brown, for appellee.
The appellant, James Hall, is the stepson of the appellee, Israel Scott. They inherited a lot and residence in the City of Natchez from Mary Scott as tenants in common. Thereafter, on October 2, 1942, the appellee conveyed to the appellant his undivided interest therein for a recited consideration of $10.00 and other valuable considerations, the receipt of which is acknowledged in the conveyance. The deed contains a reservation during the life of the grantor of the right to occupy and reside upon the property with the grantee, and free of rent.
On September 24, 1946, the appellee filed his bill of complaint herein setting forth the foregoing facts, and alleging that the true consideration for the conveyance was the promise of the grantee to support and maintain the grantor during his natural life, and to provide for the grantor a home during his declining years.
It is further alleged that on the 2nd day of November 1942, the grantee "forcibly drove the complainant from the property . . . and has ever since said date refused to permit complainant to occupy said property or any portion thereof; . . . and has wholly failed and refused to contribute in anywise to the care, maintenance or support of the complainant, all in violation of the terms, provisions and reservations in said deed contained."
That thereafter the complainant was compelled to procure other living quarters and to pay the sum of $10.40 per month as rent therefor. That the complainant has also incurred expenses for his care, maintenance and support since the date of his forcible eviction in the sum of $2,400.00.
The bill then prays that a lien be declared against the property for the satisfaction of the foregoing amounts, and that the property be decreed to be sold for the satisfaction of the said amounts, and for partition of the proceeds of the sale.
To the foregoing bill of complaint a general demurrer was interposed by the defendant, which was by the trial court overruled. This appeal is from the order overruling the demurrer, and was granted to settle the controlling principles of the case.
The appellee concedes here that, on the authority of the cases of Dixon v. Milling et al., 102 Miss. 449, 59 So. 804, 43 L.R.A. (N.S.) 916; Lee v. McMorries, 107 Miss. 889, 66 So. 278, L.R.A. 1915B, 1069; Lowrey v. Lowrey, 111 Miss. 153, 71 So. 309; New Orleans Great Northern R. Company v. Belhaven Heights Company, 122 Miss. 190, 84 So. 178; Wynn v. Kendall, 122 Miss. 809, 85 So. 85; Batson v. Draughton (Miss.), 11 So.2d 203, the bill of complainant would have been demurrable had it only sought to enforce an equitable lien for breach of the promise to support the appellee; and that the only remaining question is whether or not under the terms of the deed the grantor would be entitled to partition the property under Chapter 317, Laws of 1946. But, we are of the opinion that the complainant was entitled to none of the relief specifically prayed for. However, the bill contains a prayer for general relief, and there are sufficient facts alleged to disclose, if proved to be true, that the complainant would be entitled to recovery of damages for the alleged violation of the terms of the conveyance. No injunctive relief is specifically prayed for to prevent the grantee from interfering with the right of the grantor to remain upon the property, and as to whether or not the complainant is entitled to that equitable relief we express no opinion in the absence of the proper allegations and a prayer therefor. We merely hold that the bill is sufficient to show ground for some relief in the premises, and that the same was therefore good as against a general demurrer.
The cause will therefore be affirmed, and remanded to the chancery court for further proceedings therein not inconsistent herewith, or where the same may be transferred to the circuit court if it should be so ordered.
Affirmed and remanded.