Wood v. Morath

Smith, C. J., delivered the opinion of the court. This is an appeal from a decree awarding the appellee damages for the breach of a warranty contained in a deed to certain land executed by the appellant to the ap-pellees. The bill of complaint alleges and the evidence discloses in substance that in July, 1913, the appellant and J. M. Brasher entered into the folloAving agreement: “The said Wood, upon the terms and conditions hereafter set forth and expressed, hereby leases unto Brasher the following described property situated, in Pike county, state of Mississippi, referring to the revised map of Mc-Comb in said county, to-wit: All of lots Nos. four (4) and five (5), square S, Northern subdivision to McComb, said county and state — together with all buildings and improvements thereon. This lease is made for the term, time, and space of sixty, months, commencing on and running from the 15th day of July, 1913, at a monthly rental of twenty-one dollars and fifty cents per month payable on the 15th day of each and every month, as evidence of which said Brasher has made and furnished sixty rent notes drawn by himself to his own order and by himself indorsed dated July 15, 1913, and made payable for the sum of tAventy-one dollars and fifty cents on or before the 15th day of each and every month, commencing on the 15th day of August, 1913, the last being payable on or before the — 154 — 15th day of July, 1918, all stipulated to bear interest after maturity, at the rate of eight per cent, per annum until paid. It is hereby agreed and stipulated that in the event said Brasher shall pay each and every one of said notes as the same falls due, and until the final payment of said entire series of notes, and shall reimburse and pay to said Wood all taxes, insurance, and necessary expenses which he may incur on said property from the 1st day of January, 1914, then in such event the Mechanics’ Bank or any other bank at which the within-mentioned notes are left for collection is hereby authorized to deliver to said Brasher the warranty deed that is deposited with said bank, without any further payment or consideration whatsoever, the rental paid herein and costs reimbursed being a sufficient consideration for said sale and transfer. “Said Brasher is hereby accorded the right and privilege to anticipate payment of any and all of said notes at any time, in which event he shall have the right and privilege to receive deed to said property in accordance with above conditions. “Should said Brasher fail or refuse to pay any one of said notes when the same falls due, he shall ipso facto forfeit all right to purchase said property as hereinbefore set forth and all payments made hereunder shall be applied strictly towards rental only.” Upon the execution of this contract Brasher entered into the possession of the land therein described and Wood executed a general warranty deed conveying the land to Brasher and delivered it to the Mechanics’ Bank of Mc-Comb for delivery to Brasher upon compliance by him Avith the terms of the contract. On the 28th day of September, 1915, Brasher, Avith the consent of the appellant, assigned all of his rights under the contract to the ap-pellees, whereupon the appellant took up the deed he had deposited with the Mechanics’ Bank of McComb for delivery to Brasher and executed another to the appellees and deposited it Avith the bank for delivery to the appellees — 155 — upon the compliance by them with the terms of Brasher’s contract. The taxes on the land due the city of McComb seem to have been paid by Brasher and the appellees, but the taxes thereon due the county and state were paid by the appellant,'except for the year 1916, for which year the taxes were not paid, resulting in the land being sold by the tax collector and bought in by J. M. Holmes. The appellees complied with the terms of Brasher’s contract with Wood and received the deed to the land which had been deposited by the appellant with the Mechanics’ Bank of McComb. When Holmes’ tax title matured, he made a demand on the appellees for possession of the land and was threatening to eject them therefrom, wiien they exhibited the original bill herein against him and prayed for the cancellation of Holmes’ tax deed, and, if not entitled thereto, then to a recovery against the appellant on his warranty. Each of the defendants to the bill answered; Holmes making his answer a cross bill in which he prayed for the confirmation of his title and for possession of the land. On final hearing the court below granted the prayer of Holmes’ cross-bill and awarded the appellees a recovery against Wood on his warranty of title. Wood has appealed to this court. The only ground on which the appellant asks for a reversal of the decree of the court below is that the warranty on which he is sued was hot broken for the reason that it does not cover either liens for unpaid taxes accruing, or sales for taxes made, after the delivery of his deed in •which it appears to the Mechanics’ Bank of McComb for delivery to the appellees upon compliance by them with the terms of Brasher’s contract. The real question for decision therefore is:'When did the warranty become effective? Did it become effective when the deed was delivered by the appellant to the bank, or when the deed was delivered by the bank to the appellees? If in the first instance, the decree of the court below should be reversed; if in the latter, it should be affirmed. — 156 — In the absence of an agreement to the contrary, and there is none such here, an instrument held in escrow by a third person does not take effect until its final delivery unless in order to prevent a failure of justice, it becomes necessary to make the second delivery relate back to the first and thereby cause the instrument to be effective from the first delivery. Harkreader v. Clayton, 56 Miss. 383, 31 Am. Rep. 369 ; Simpson v. McGlathery, 52 Miss. 723 ; Whitfield v. Harris, 48 Miss. 710. In each of these,cases the holding that the deeds there in question, were effective from the first delivery was for the protection of a grantee; but, assuming, for the sake of the argument that the rule there applied can be invoked also for the protection of a grantor, what are the facts and circumstances which make it necessary to so hold here in order to prevent a failure of justice? The contention of counsel for the appellant in effect is that under the contract between the appellant and Brasher it was the duty of Brasher, and under the contract between the appellant and the appellee it was the duty of the appellee, to pay the taxes on the land after they entered into possession thereof, that consequently the parties to that contract did not intend for the warranty therein to cover liens for unpaid taxes accruing or sales made after the delivery of the deed contracted for to the bank, which duty and intention can be made effective only by holding the deed to have become effective upon its delivery to the bank. Three reasons are assigned in support of this contention: First, that the relation between the appellant and Brasher, and between the appellant and the appellee, under the initial contract, was that of vendor and purchaser; second, that if the relation between them was that of landlord and tenant, the appellant being the landlord and Brasher and the appellee being the tenants, it was the duty, first of Brasher, and afterwards of the appellee, to pay the taxes on the leased premises for the reason that the law charges a tenant in possession of the leased premises with the duty of paying the taxes thereon; and, third, the — 157 — practical construction put upon the contract by the parties thereto as evidenced by their acts thereunder demonstrate that it was their intention for the taxes on the land to be paid by Brasher and the appellee. . 1.' The initial contract herein did not create the relation of vendor and purchaser between the parties thereto. That contract.was a lease which provided that the lessee therein should receive a deed to the leased property upon compliance by him- with the terms of the lease contract, thereby becoming the purchaser of the property. Such a contract is valid, and until the lessee therein becomes the purchaser of the land by complying with the terms of the contract, the relation between the parties is that of landlord and tenant. Nobles v. McCarty, 61 Miss. 456 ; Puffer Mfg. Co. v. Dearman, 97 Miss. 622, 54 So. 310 ; Robinson Co. v. Weathersby, 101 Miss. 724, 57 So. 983 ; Robertson v. Puffer Mfg. Co., 112 Miss. 890, 73 So. 804. The error of counsel for the appellant in this connection is in failing to distinguish between the relation of parties to a contract like- the one here in question and to a contract by which the land is conveyed to the grantee with a provision therein that 'the grantee shall pay rent on the land in event of his failure to comply with certain stipulations of the contract. 2. In Walker v. Harrison, 75 Miss. 665, 23 So. 392, it was said that: “A tenant, in the possession of land at the time of its sale for taxes, is under obligation to pay the taxes, and therefore cannot buy so as to obtain title as against his landlord. The land itself is, in fact, the debtor to the public, and prima facie it is the tenant’s tax, because all the remedies are against him. Ordinarily, one who voluntarily pays the debt of another cannot recover the sum paid, but taxes paid by the tenant is not a voluntary payment.” This statement Avas merely by way of introduction to the question presented to the court for decision, and was no part of the decision itself; the question for decision being, not Avhat Avas the obligation, if any, of a tenant in — 158 — possession to pay the taxes on the leased premises, but whether a tenant in possession could purchase the leased premises from a purchaser thereof at a tax sale made before the tenant went into possession of the premises. The rule intended to be there referred to, though erroneously stated, is simply that a tenant in possession may pay the taxes on the leased premises in order to prevent the sale of the premises therefor and look to his landlord for reimbursement of the money so expended. In the absence of an agreement between them to the contrary, a tenant is under no obligation to his landlord to pay the taxes on the leased premises. 1 Taylor on Landlord and Tenant (9th Ed.) section 341; Jones on Landlord and Tenant, section 412; Underhill on Landlord and Tenant, 1106; 16 B. C. L. 812; 18 A. & E. Ency. of Law, 650. 3. The rule that, where a contract is ambiguous, the practical construction placed thereon by the parties thereto as evidenced by their acts thereunder may be looked to in order to ascertain its meaning, cannot be invoked here, for the contract under consideration is plain and unambiguous and creates the relation of landlord and tenant without any obligation on the part of the tenant to pay the taxes. But, if the rule were otherwise, the fact that the appellant was reimbursed by Brasher and the appellee for the taxes paid on the land by him could hardly be held to prove that the parties thereto construed the contract to relieve the appellant from any obligation to pay the taxes on the land, for the contract expressly provides that the appellant should be so reimbursed before the deed should be delivered by the bank. Affirmed-