Mitts v. Price

Cook, J., delivered the opinion of the court. On April 14, 1921, Mrs. Annie B. Price, appellee, exhibited her bill in the chancery court of Lauderdale county against F. W. Mitts, appellant, seeking to recover of appellant two diamond rings by virtue of a certain contract made and entered into between these parties on the 25th day of April, 1914, and praying in the alternative for a de — 560 — cree against appellant tor the then market value of tlie rings, less the amount due appellant by appellee under the terms of this contract. The chancellor rendered a decree ordering appellant to deliver the rings to appellee, and, in the event he failed to deliver the rings, that appellee recover of appellant the sum of two hundred and ninety-eight dollars and fifty-three cents and costs, and from this decree this appeal was prosecuted. The facts disclosed by this record are substantially as follows: In April, 1914, appellee was the owner of two certain diamond rings, of the value of between three hun-di’ed dollars and four hundred dollars, which were then in a pawnshop in the city of Meridian, Miss., where they were pledged to secure a debt of one hundred and eighty-six dollars due the pawnbroker by appellee. The husband of ap-pellee was at that time incarcerated in the federal penitentiary at Atlanta, Ga., serving a sentence of four years on a charge of embezzlement, and appellee was unable to raise the money necessary to redeem the rings. As the rings were about to be sold by the pawnbrower for the debt due him, one Moody Price, a brother-in-law of appellee, undertoqk to raise the money to prevent the sale. He approached appellant, and acquainted him with the facts, and after some negotiations it was decided that appellant would investigate the diamonds, and, if he found them to Tie worth the amount demanded by the pawnbroker, that he would take over the diamonds and pay the pawnbroker the amount due him; and this was subsequently done. At the time of this transaction Moody Price prepared the bill of sale or contract which is the basis of this suit, and which reads as follows: “Meridian, Miss., April 25, 1914. “In consideration of one hundred and eighty-six dollars I hereby warrant, sell and deliver unto F. W. Mitts, two gold rings, each of which is set with a diamond, the larger stone weighing about seven-eighths of a carat, the other iveighing about three-fourths of a carat, Avith the privilege of redeeming or buying the two rings and diamonds back — 561 — at tlie same price at such time as 1 may desire, by paying ten per cent, interest per annum from date on purchase money one hundred and eighty-sis dollars. It is also agreed between myself and F. W. Mitts that I may redeem, or buy back the largest stone first if I see fit to do so, by paying one hundred and twenty dollars with ten per cent, interest on this account from date. “F. W. Mitts and myself both to retain a copy of this bill of sale. “Witness my signature this 25th day of April, 1914. Mrs. Annie B. Price. “The provisions of the above bill of sale are hereby agreed to by me this the 25th day of April, 1914. F. W. Mitts.’7 At the time of the execution of this bill of sale the diamonds were delivered to appellant, and they remained in his possession for some three or four years. Appellant testified that he then approached Moody Price and informed him that he needed the money invested in the rings, and requested him to find out whether appellee desired to exer cise her right to repurchase under the terms of the bill of sale; that shortly thereafter he was informed by Price that appellee did not desire to exercise this right, and that he could deal with the rings as he saw fit,- and that he then disposed of them. After appellee’s husband regained his liberty, they moved to the state of Ohio, where she continued to reside, and it appeal's Avithout dispute that, although this contract Avas entered into on the 25th day of April, 1914, and the rings Avere then delivered to appellant, there Avas never, at any time, for a period of nearly seven years, a single word, suggestion or indication from Mrs. Price, appellee, or any one for her, that she desired to repurchase the rings from appellant, and- it is admitted that appellee Avas not financially able to repurchase the rings at any time during this period of more than six years. Shortly before the filing of tlie bill of complaint in this cause, a daughter of appellee approached appellant, and endeavored to repurchase the rings — 562 — Avith her own funds, but. appellant bad disposed of them some years before, and was therefore unable to deliver them, and, upon his failure so to do this, suit was filed. Appellee testified that at the time the bill of sale was executed, appellant understood that she would probably not be able to repurchase or redeem the rings until she could receive some assistance from her husband after his release from prison, and the only explanation offered by her for her silence of more than six years was that she Avas never financially able to repurchase the rings. The defendant interposed a demurrer to the bill of complaint Aidiich challenged the right of appellee to have specific performance of the contract, on the grounds tliat the? bill shows no title or interest in the appellee to the rings in question; that the instrument under Avhich complainant claims Avas Avithout consideration; that the complainant does not show that she has complied Avith the condition of said agreement upon which appellant Avas to reconvey; that the bill shows that it is an attempt to prove by parol that a certain writing absolute on its face is a mortgage only, in the face of section 4783 of Code of 1906, Avithout alleging that the maker did not part with the possession of the property in question, or that there was fraud in its procurement, and that fraud Avas the issue to be tried, and that the bill shows on its face that complainant’s rights, if any, were barred by the statute of limitations. This demurrer Avas overruled; thereupon appellant filed his answer, setting up substantially the facts herein detailed, and averring that, since the contract granting the right to repurchase the property failed to specify the time of performance, the right must be exercised Avithin a reasonable time, and that this right of repurchase given in the contract Avas not exercised within a reasonable time; that for nearly seven years nothing Avas said or done by ap-pellee to indicate to appellant an intention or desire to repurchase the rings, and this delay of seven years did not constitute a reasonable time Avithin Avhich to repurchase. The decision of the question presented by this averment — 563 — is decisive oi this appeal, and for that reason we deem it unnecessary to set out the further averments of the answer. Whether the instrument of writing which is the basis of this suit is a mortgage or a contract of sale with the right of repurchase at a fixed price to be exercised within a reasonable length of time is extensively argued by counsel. A mortgage presupposes an existing debt, and, where there is no debt due by the vendor to the vendee, an agreement to resell ivill not convert an absolute conveyance into a mortgage. The contract in this case imposed no obligation on appellee to repurchase, and there was no existing indebtedness from appellee to appellant Avbieh could have been made the basis of a suit or demand against appellee. If the value of the rings in question proved insufficient to reimburse appellant for the amount invested in them he could assert no demand against appellee for the balance, and Ave conclude that the contract Avas not a mortgage, but simply a contract of sale with the right to repurchase upon the payment of a fixed sum with interest. Since this contract fixed no limit of time within Avhich the right to repurchase should be exercised, the next question presented is: In Avhat time must this right be exercised? It is settled in this state by numerous decisions that, Avhere a contract specifies no túne for performance, it must be performed within a reasonable time. Magee et al. v. Catching et al., 33 Miss. 672; Echols v. Railroad Co., 52 Miss. 610; Hall v. Eastman, Gardiner & Co., 89 Miss. 588, 43 So. 2, 119 Am. St. Rep. 709; Burroughs v. Gilliland, 90 Miss. 127, 43 So. 301; Dutton & McMillan v. Shaw (Miss.), 38 So. 638. In fact, we understand that counsel for appellee concedes this proposition, but contends that the facts in each particular case must, determine Avhat would be a reasonable time for performance, and that, under the facts in this record, a period of over six years Avas reasonable. It is true that no time can be fixed that would be considered reasonable in all cases, and that the period of time that would be considered reasonable must be determined in each case by the facts and circumstances of the — 564 — particular case; but where the possession of personal property is delivered to a vendee under a contract of sale, with the right of repurchase, a reasonable time for the exercise of this might must be within such time as would bar the vendor’s remedy, if the defendant’s possession had been, from the beginning, adverse to the title asserted by complainant. The full period of time prescribed by the statute of limitations might be held to be unreasonable in some cases, but we think the right to repurchase, in any case where no time is specified in the contract, will be extinguished by the lapse of the period of time prescribed by the statute of limitations for the institution of a suit for the recovery of the property, if it had been held adversely. In other words, the statute of limitations fixes the time beyond which the right will not extend when no time is specified for performance, and, if a longer time is desired, the contract should so provide. Magee et al. v. Catching et al., 33 Miss. 672. Since the appellee herein did not undertake to exercise her right until nearly seven years had elapsed, her right was then extinguished, and the decree of the court below will therefore be reversed, and judgment entered here for appellant. Reversed, and judgment here for appellant. Reversed.