Fowlkes v. Lea

Truly, J.,

delivered the following dissenting opinion:

In order to arrive at the conclusion reached by the majority of the court, it is necessary (1) to admit parol proof to alter and change the terms and conditions of a written contract, though there is neither allegation nor proof of fraud or mistake on the part of either contracting party; (2) having overthrown the recital of payment in the written contract, to add to the promise to pay, which is implied by law to exist between vendor and vendee, a prime lien, which is not retained by the instrument, and which has been expressly relinquished by the contract between the parties; (3) having rejected the written contract mutually entered into, to insert in the writing another, and thereby avoid the statute'of limitations governing actions founded on unwritten contracts. I cannot join in this system of judicial conveyancing, by which a warranty deed solemnly reciting the payment of all purchase money is converted into a conveyance which reserves to the vendor a lien for the sum stated as having been paid. Baker v. Fleming (Ariz.), 59 Pac., 101 ; Ahrend v. Odiorne, 118 Mass., 261 ( 19 Am. Rep., 449 ). It is probably true that when the terms of a deed, as to the purchase money, show that it is unpaid, in whole or in part, or are ambiguous and indefinite, and notes or other written evidence of nonpayment be taken, the- vendor may, if not estopped by waiver or conduct, assert a lien on the land so long as it remains the property of the vendee or his privies, or of subsequent vendees with notice;- but I doubt the soundness of the *519 reasoning which permits the specific, definite recitals of a solemn deed to be ignored and held for naught, and another and different contract manufactured purely by parol testimony. While it is true the doctrine announced by the majority of the court on this particular point is recognized in many jurisdictions, I believe the contrary view to be supported by the sounder reasoning, and more in accord with the principles of equity and justice, and I prefer to align myself with the numerous authorities so holding. 3 Pom. Eq. Juris., secs. 1250, 1251; Smith v. Allen (Wash.), 50 Pac., 783 (39 L. R. A., 82; 63 Am. St. Rep., 864 ). I concede that under certain circumstances a receipt can be disproved and' overthrown, but, this accomplished, the creditor has nothing more than the right to proceed against his debtor, and secure a personal judgment for the sum due. The opinion of the court states: “The recital in this deed that the grantor had sold and conveyed this tract of land to the grantee for four hundred dollars is, in substance and effect, the perfect equivalent of a recital that the grantor had sold and conveyed the grantee 'this tract of land, for which the grantee was to pay the grantor four hundred dollars.” If this statement be good law, it is useless and idle to take a deed reciting that the purchase monéy has been paid. How a recital that a deed is in consideration of four hundred dollars “to him paid by the said party of the second part, receipt whereof is hereby acknowledged,” can be construed as “the perfect equivalent of a recital that the grantor had sold the grantee this tract of land, for which the grantee -was to pay the grantor four hundred dollars,” passes my comprehension. If this statement be sound or accurate, the acceptance of a receipt for money paid for property is “the perfect equivalent” of a written promise to pay the purchase money. A novel proposition, surely.

Again, assuming that an indebtedness was due, and could rightfully have been asserted in the proceeding in the instant case, in my judgment, the same was barred in three years, under § 2139, Code 1892. That section recites, “Actions on any un *520 written contract, expressed or implied, shall be commenced in three .years,” etc. The theory on which this suit is sought to be upheld is that the grantee, by accepting the land, established an implied contract to pay for it, which was breached by nonpayment, and a cause of action thereupon immediately accrued to the grantor. This contract can only grow out of the relation of the parties as vendor and vendee. The contract, if it exists at all, arises, not out of any writing which is simply declaratory of the existence of the relation of vendor and vendee, but by implication of law by reason of such relation. I. C. R. R. v. Miller, 32 Ill. App., 267 ; Knight v. St. L., I. M. & S. Ry. Co. (Ill.), 30 N. E., 544 ; Pennsylvania Co. v. C., M. & St. P. Ry. Co. (Ill.), 33 N. E., 416 .

A contract in writing is one in which all necessary terms and conditions must be definitely and expressly stated. The final agreement of the parties must so distinctly appear as to render resort to parol testimony, or to the duties implied by law from the relation of the parties, or from the facts stated, unnecessary, in order to ascertain and determine the scope and extent of the understanding between the parties. The promise to pay, the amount to be paid, the date of payment, must all be set out in and by the instrument itself. This, in my judgment, is elementary. The writing here under consideration contains no expressed promise to pay, no statement of any sum remaining unpaid, and, perforce, no date of payment. These requisites of a formal, valid written contract are supplied by parol and supported by an implication of law. “If it be true that the agreement as set forth in the writing is so indefinite as to necessitate resort to parol testimony to make it complete, the law is that, in applying the statute of limitations, it must be treated as an oral contract.” Plumb v. Campbell (Ill.), 18 N. E., 790 . Assuming that such a thing can exist as an “implied written contract,” it cannot be successfully contended that a writing which positively states that nothing is due can be distorted into a promise to pay a sum which it asserts has already been paid. *521 Therefore, I contend that, if the grantee was liable at all, it was upon an “implied unwritten contract,” and the chancellor was correct in so holding. Love v. Atkinson (N. C.), 42 S. E., 966 .

The views herein expressed are not antagonistic to the conclusion of the court in Washington v. Soria, 73 Miss., 665 ( 19 South., 485 ; 55 Am. St. Rep., 555 ), where the amount due, the date of payment, and all other necessary terms of a written contract, were evidenced by the terms of the deed under review, but I disapprove of any extension of the principle announced therein. The other cases cited in the opinion in chief proceed mainly upon the principle, sound and universally recognized, that the vendee’s acceptance of the deed is such an assent to all its stipulations as will estop him from making a denial. That principle has no application to the case at bar. This is an effort, not to enforce the stipulations of the deed, but to insert other 'and different provisions. In my judgment, the conclusion of the court practically nullifies and defeats the object of our laws requiring all contracts in reference to land to be in writing, acknowledged, and recorded. It opens the way to successful fraud, by permitting the vendee of land, holding under an absolute warranty deed, to trade on the strength of that record title, and then, if his land is taken by his creditors under execution, allow him and his- vendor, by parol testimony, to establish a lien paramount to the title thus acquired by the purchaser at such sale. It renders insecure the title by which many homes in the state are held, by affording an opportunity, which was taken advantage of in the instant case, after the death of the grantee, for the prospective heirs of the grantor and others directly interested to prove by parol testimony a verbal lien in direct contradiction of the terms of the deed. Nor will lapse of time avail to perfect such title, for, if both debt and lien can be established by parol, manifestly the date of the maturity of the debt — the time when the “cause of action shall have first accrued” — can be likewise so established. Instances might readi *522 ly be multiplied, but I content myself by merely suggesting some of the perils and pitfalls- which beset the path which the court is now traveling.

I disagree with the conclusion of the courts and dissent from the reasoning upon which the decision is based.