Atkinson v. Whitney

Woods, C. J., delivered the opinion of the court. We think it unnecessary to follow the counsel for appellant, in their argument upon the minor propositions involved in the case and discussed in briefs of counsel respectively. 1. In the absence of any pretense of fraud in the appraisement, but on the'simple averment that the appraisers put an over-valuation upon the lands, we must decline to enter upon that field of inquiry and speculation. The appraisers, admittedly, behaved honestly and fairly, and we cannot disturb their simple appraisement of the lands. The proofs taken on this point were wholly unnecessary, but having carefully considered them, we have no hesitation in saying that they strongly support the correctness of the appraisement, if that, indeed, had stood in need of any support. 2. The various grounds of complaint set up and relied upon as to the mere manner of the parol submission to arbitration by the parties, as the matter is called by appellant’s counsel, are untenable, for the reason that, whatever are the rules governing submission to arbitration, this case can be no way affected thereby, inasmuch as this was in no proper sense an arbitration, but simply an appraisement [663] of the value of the lands by persons mutually selected for that purpose. There is nothing in the agreement which provided for the selection of the appraisers which required their appointment in writing, or which necessitated the production of witnesses before the appraisers, or made necessary service of notice upon the parties of the time when the appraisers would go upon the land, as directed in the agreement of the parties, and appraise the property. 3. The appraisement of the lands was not void for uncertainty by reason of the appraisers not having had the plantation actually surveyed and the exact number of acres ascertained. The number of acres, as shown by the legal subdivisions enumerated in the descriptions of the place in both the trust-deed made by appellees and the agreement signed by appellant, is clearly shown, and the fact that the tract of land is said to “ contain 680 acres, more or less,” may not be held as making uncertain the quantity shown to exist. Here, as in any conveyance of lands, the meaning of the words “ more or less,” is that the parties shall run the risk of gain or loss, and if the quantity of land shall prove greater than that sold, the seller shall be loser; and if the quantity shall prove less than that sold, then the buyer shall prove loser; but, in either event, the parties shall abide by their contract. And, therefore, 680 acres was the correct quantity in the present casé, and its appraisement at so much per acre was not objectionable, much less void, for uncertainty. 4. The lands actually appraised were the lands enumerated in the deed of trust and the agreement to appraise; these lands were the property of M. A. Whitney, as was well known to the parties to the contract; M. M. Whitney owned no lands, but he was the head of the family residing on this plantation; and the statement of the appraisers that their appraisement was of the lands of M. M. Whitney was inadvertence in the insertion of the initials of the husband instead of those of the wife. The proper lands were properly appraised by the proper men, and we shall not hold the action void because of this immaterial inadvertence in writing the name of the owner. But without going further into these minor questions, we now [664] direct ourselves to the consideration of the two propositions on which the contention rests, viz : 1. That the agreement, exhibit A to the amended bill, being a contract for the sale of lands and not being signed by appellees, is not enforceable against them, and cannot be enforced against appellant. 2. That the agreement, exhibit A to the amended bill, was a voluntary agreement on the part of appellant, and without consideration to support it, and therefore it is invalid. Let us examine them in order, and see if they or either of them are maintainable. On the first proposition, we are warranted in declaring that there is much direct evidence and strong supporting circumstances tending to show that the deed of trust executed by appellees, and the agreement signed by appellant, made exhibit A to the amended bill, were executed contemporaneously, and were made to evidence one contract, and that each was executed in consideration of the execution of the other. Appellees bound themselves to secure appellant in a large debt for which appellant had little or no security, by signing and executing the deed of trust on Mrs. Whitney’s plantation; and, on his part, appellant bound himself to see that the plantation was not sacrificed at a forced sale, by agreeing to unite with appellees, after condition broken in their deed of trust, in having the lands fairly appraised, and himself purchasing them at such appraised value. It is true the appellees did not sign the agreement, exhibit A, but they have in every other possible way signified their consent and adhesion thereto. They have joined appellant in having the lands appraised; they have in writing accepted the action of the appraisers as binding upon them, and they have executed the proper conveyance to the lands and tendered the same to appellant in every method open to them. The agreement was accepted by appellant, and his acceptance evidenced by his signing the same on the day he delivered it to appellee; the acceptance of appellees has since been evidenced, in writing and by solemn deed, and we do not see why the contract is not enforceable against appellant on this state of facts. This was, in effect, a contract by which appellant agreed, [665] in a certain event, to take appellees’ lands at a price to be fixed by appraisers. The event having happened, the appraised value of the lands having been fixed, and the appellees now tendering their deed to the property, in accordance with the contract, we are of opinion that the contract is enforceable against the appellant, the person who signed the written agreement, and the person sought to be charged in this suit. In this important particular, the case of Marqueze v. Caldwell, 48 Miss. 30, seems directly in point. 2. The consideration of the remaining proposition, to wit, that the agreement signed by appellant is without consideration, and therefore void, may be regarded in the light of what has just been hereinbefore said, for much of that remark is pertinent here also. The contention here will be made more clearly to appear if we shall say that appellant maintains that there is a want of mutuality of consideration in the making of the agreement, exhibit A. Putting out of sight, then, for the present, the idea of the oneness of the contract as evidenced by the trust-deed signed by appellees, and the agreement signed by appellant, and the mutuality of consideration shown by the two writings taken together, let us see if appellants’ position will be defensible.' We will have now a written agreement signed by appellant and delivered by him to appellees, and the same retained and acquiesced in by appellees until the time had arrived in which it was necessary to take steps to execute the agreement, though not signed by appellees. When the time for the execution of the agreement arrived, we have it indisputably made certain that appellees not only signified their purpose to stand by the agreement,, but we find that they have actually executed it, so far as its execution at all depended upon their volition and action. After condition broken in the trust-deed, they promptly notified appellant of their inability to pay his debt; they joined with appellant in the appointment of the appraisers; they accepted the action of the appraisers as final and conclusive; and they made and tendered a proper deed of conveyance to the lands to appellant. The consideration in the agreement, on the part of appellees, was the performance of certain acts by them, and these acts, we find, they at once and promptly [666] performed, when the necessity arose for performance. The familiar illustration in the books meets the requirements of this case. If A. promise B. to pay him a sum of money if he will do a particular act, and B. does the act, the promise thereupon becomes binding, though B. at the time does not promise to do the act, for the performance invests the contract with a consideration, and this relates back, so making the original promise binding. 5 Pick. 379; 27 Iowa, 99; 48 Miss. 30, already cited. The decree conforms to these views, and is, Affirmed.