Hays v. Bostick

Mates, J., delivered the opinion of the court. An examination of this record thoroughly convinces us that .a gross wrong was done Mrs. Bostick by Priester, her co-vendee; but we are equally convinced that appellants were not connected with it in any way. Briefly stated, the facts show that the .appellants owned certain lands in the city of Hattiesburg and desired to sell the same. They gave an option to Priester on the •same at the price of $2,000. Priester went to see Mrs. Bostick, •and persuaded her to join him and buy the property, representing to her that the appellants had priced these lots to him at $3,000. After much persuasion Mrs. Bostick consented to •take a two-third interest in the property at the price of $2,000, which Priester falsely represented to be the price of same. Priester claimed to have in cash only $500, and he procured Mrs. Bostick to advance $1,000 in cash, pretending that he was ■going to make a cash payment of $1,500 on the land and execute ■notes for the remainder. She assented to this arrangement, and gave Priester $1,000 which she supposed he wás going to pay •on the property as her two-thirds of the cash payment on the [799] purchase price, and Priester to add to it the sum of $500 as bis •one-third of the cash payment to be made. Mrs. Bostick was .made to believe by Priester that the price of the property was $3,000, whereas, in truth, it was only $2,000; and when Priester obtained the $1,000 from Mrs. Bostick, he put $500 of it in his pocket and made a cash payment to appellants of only $500. After pocketing the $500 and making the cash payment of the •other $500, Priester procured Mrs. Bostick to execute two promissory notes for $500 each, payable in six and eighteen months, with interest at eight per cent, and stipulating that an additional -stun of twenty per cent, should be added to the principal and interest in case of collection by suit. After this was done, Priester executed his note for $500, payable in twelve months, interest at eight per cent, with additional damage of ten per ■cent, if amount was collected by suit. Mrs. Bostick was always made to believe by Priester that the price of the property was •$3,000. She thought she was to pay two-thirds of this amount, .and get a two-thirds interest in the property, and she was made to believe that Priester was to pay one-third and get a one-third interest in same. She believed that $1,500 was to be paid in cash, of which she was to pay $1,000, and that Priester was to pay $500; and hence it was that she paid the cash of $1,000 and •executed her notes for the other $1,000. The truth was that the price of the property was only $2,000, and Priester deceived •her, and paid no cash himself, but, on the contrary, pocketed the ■$500 of the money that Mrs. Bostick had given him, only paying $500 of the $2,000 which was the agreed purchase price of the property. Appellants knew nothing of all this; that is to say, they did not know of the fraud being practiced on Mrs. Bostick by Prie'ster. To still further cover up the fraud, and in order to keep Mrs. Bostick deceived as to the price appellants had agreed to let Priester have the property for, when the deed was made, Priester procured appellants to write into the deed as [800] the consideration tbe purchase price of $3,000, reciting a paid consideration of $1,500, tbe balance to-be paid as above specified,, claiming to- appellants that it would belp tbe purchasers get a good price for tbe property. Appellants did not know of tbe fraud being practiced on Mrs. Bostick by this act, but made tbe deed as Priester requested. Tbe notes of Mrs. Bostick are binding upon her so far as appellants are concerned. They participated in no- fraud. We do-not think tbe decree of tbe chancellor, in relieving her of responsibility, can be upheld under tbe facts of this record, either in law or in fact. The court should have entered a decree condemning to be sold tbe property described in tbe bill of complaint for tbe purpose of satisfying the vendor’s lien on same,, and, in tbe event tbe property did not bring enough to satisfy tbe note of Mrs. Bostick, tbe appellants are entitled to a judgment over. It does not appear in this record that Priester, who is a nonresident, was ever properly brought before tbe court by summons, either on tbe original bill or tbe cross-bill, and for this reason tbe decree as to him is a nullity and must be reversed. When tbe court below acts in tbe case again, it should order process to issue, in order that Priester may be made a party to tbe suit, and when be is made a party, if tbe facts of tbe case are as they are now with reference to him, tbe court should order a decree against him, condemning bis one-third interest to be sold for tbe purpose of satisfying the notes executed by him to appellants, and, in ordering tbe property to be sold, tbe court should direct that the interest of Priester in this property be first sold, and the proceeds thereof applied to bis indebtedness on tbe note which be executed to appellants. If, upon tbe sale, tbe interest of Priester shall bring more than bis debt to appellants, the court should order tbe surplus to be credited on tbe notes of Mrs. Bostick, and condemn her two-thirds interest to be sold for only such balance as may remain after giving her the afore [801] said credit; and if there still remains a balance dne.appellants by Mrs. Bostick, appellants are entitled to a decree over such balance. We say nothing at this time as to the right of appellants to collect the twenty per cent, damage. Reversed and remanded.