(117 Miss. 886) KELLY v. SKATES. (No. 20309.) (Supreme Court of Mississippi, Division B. June 17, 1918.) 1. FRAUDS, STATUTE OF 74(1)-CONTRACT FOR SALE OF LAND-CREATION OF TRUST BY PAROL-CONSTRUCTION OF AGREEMENT. Where a deed of trust provided that the trustee should make sale of the lands in front of the mortgagee's store, an oral agreement, made at the request of the mortgagor, to obtain a better bidding, that the land was to be sold at another place, was not a contract for the sale of land or a declaration of or the creation of any trust or confidence, which, under Code 1906, §§ 4780, 4781 (Hemingway's Code, §§ 3124, 3125), must be in writing, signed and acknowledged and filed with the clerk of the chancery court of the proper county for record. 2. EVIDENCE 445(5) — PAROL EVIDENCE MORTGAGE STIPULATED PLACE Of Sale. Such parol agreement pertained only to one of the material conditions upon which the trustee could exercise his power of sale, and was a valid and effective agreement. 3. MORTGAGES 378-SALE UNDer Deed of TRUST-PLACE OF SALE-ESTOPPEL. In such case the mortgagee's statement that if the land was going to be sold he wanted it sold at another place, where there would be somebody to bid on it, upon which it was advertised for sale at that place to the mortgagor's knowledge and without his objection, estopped him from questioning the validity of the sale at such place. Appeal from Circuit Court, Hinds County; W. H. Potter, Judge. Ejectment by G. W. Skates against Marcus Kelly. Verdict and judgment for plaintiff, and defendant appeals. Affirmed. J. M. Shelton, of Raymond, for appellant. M. Ney Williams, of Raymond, and W. Calvin Wells and L. B. Jones, both of Jackson, for appellee. contended and introduced testimony tending to prove that the indebtedness secured by the trust deed was long past due and unpaid; that demand was made upon Kelly for payment; that Kelly expressed himself as being unable to pay the debt; that plaintiff thereupon warned the defendant that he would be compelled to foreclose; and that Kelly thereupon stated "that if he was going to sell the land, he wanted to sell it at Utica, where there would be somebody to bid on it;" that thereupon the parties agreed that the sale would take place in front of the post office in the town of Utica; that due advertisement was made of the sale, and Kelly was informed of the time and the changed place, and made no objection to the sale taking place in the town of Utica. There is testimony tending to show that Mr. Skates' store was located in a rural settlement some six miles from the town of Utica, and that there are no houses or industries there except the one store and residence, the property of Mr. Skates, while the town of Utica has several hundred inhabitants, and was a more public place and more available to prospective purchasers. The testimony tends to show also that appellant insisted upon the land being sold in Utica, and that he told appellee that he would have a man ready to pay the money or bid in the place, and that one conversation to this effect took place after the trustee in the deed of trust had instructions to sell, and after the trustee had informed appellant that the sale would be made in the town of Utica. There is no question of fraud or bad faith, and no point is made upon the method of advertisement or sale except as to the place of sale. [1, 2] Appellant submits that: STEVENS, J. Appellee, Skates, instituted "The place of sale could not be changed from this action to recover possession of a certain that named in a deed of trust unless the change tract of land then occupied by appellant, Mar-ed and acknowledged with the same solemnity was made by a written instrument, duly signcus Kelly, the plaintiff alleging in his affida- as the original deed of trust." vit that he was the owner of the premises and legally entitled to the immediate posses- We do not believe the law so limits the sion thereof, and that the defendant, upon right of contract. The oral agreement to due notice, refused to vacate. On the trial change the place of sale does not, in our judgof the case in the circuit court appellee relied ment, violate any statute of our state. The upon a trustee's deed executed by the trustee agreement questioned was certainly not a in a certain deed of trust given by Kelly contract for the sale of lands, and was not a upon the premises in question to secure declaration of or the creation of any trust or an indebtedness in favor of Skates. The confidence in any lands. Sections 4780 and cause was submitted to a jury, and there 4781, Code of 1906 (Hemingway's Code, § 3124 was a verdict and judgment in favor of and § 3125), were not violated. The oral agreethe plaintiff, from which appellant ap- ment only pertains to one of the material conpeals. The sole question raised by this ditions upon which the trustee could exercise appeal is the contention of appellant that his power of sale. The deed of trust was not the deed of trust provided that the trustee silent as to the place of sale, and under the should make sale of the lands in front of G. general law of contracts we see no obstacle W. Skates' store; that there was an oral in the way of the parties changing the writagreement to change the place of sale, and ten stipulation as to the place of sale by an that this agreement, being oral, was invalid, oral understanding. The combined efforts of and that this "changing of the place of sale counsel for both parties have failed to find or from that named in the deed of trust to anoth- refer us to any case that directly bears upon er place so vitiated the sale that it is void the question, except the case of Chandler v. and of no force and effect." The plaintiff | Peters (Tex.) 44 S. W. 867. There Chandler is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of owner is precluded from testifying to such g 1577), providing that claimant against estate claim by Code 1906, § 1917 (Hemingway's Code, of deceased person shall not testify in support of his claim." the mortgagor, and himself made an oral re-ing such property under a mortgage after death quest of the trustee to sell the lands in Polk county instead of Galveston county, and thereby induced the sale to be made at a place other than the one stipulated for in the writing. The court, speaking through Fly, J., observed: "If appellant, by his words and conduct, induced the sale of the land to take place in Polk county instead of Galveston county, and was present and by his conduct encouraging the sale of the premises, and any one was induced by such acts to buy the land, appellant would. we believe, be estopped from denying the validity of the sale." [3] The facts of that case may be somewhat stronger against the contention of appellant than the facts of the present case, Lut the principle, we believe, is essentially the same. There is no evidence that appellant here appeared at the sale and actively encouraged bidding. There was abundant evidence, however, that he requested that the sale be made in Utica, and that he was duly informed of the time and changed place, and had an opportunity of being present. He "by his words and conduct" is estopped now to question the validity of this sale. By his affirmative action he has caused the sale to be made at a place of which he now complains. The undisputed proof shows that Utica was a more advantageous place to sell. Frequently trustees in deeds of trust have been invested with a discretion in naming the place of foreclosure, and the right of the parties to so contract has not been challenged. Our court, in Lee v. Hawks, 68 Miss. 669, 9 South. 828, 13 L. R. A. 633, said: "A defense may be made by showing an executed parol agreement waiving or annulling a particular provision of the written contract," and, quoting from Mr. Benjamin on Sales, "parol evidence to prove, not a substituted contract. but the assent of the defendant to a substituted mode of performance of the original contract. when that performance is completed, is admissible." Upon the sole contention here made, we think the learned circuit court committed no error in the instructions complained of, and the judgment of the lower court will be af firmed. Affirmed. (118 Miss. 1) GIBSON v. HERRIN. (No. 20173.) (Supreme Court of Mississippi, Division B. June 17, 1918.) Appeal from Circuit Court, Coahama County: W. A. Alcorn, Jr., Judge. Replevin by Fred Gibson against S. J. Herrin. Judgment for defendant, and plaintiff appeals. Reversed and remanded. Maynard & Fitz Gerald, of Clarksdale, for appellant. Cutrer & Johnston, of Clarksdale, for appellee. ETHRIDGE, J. Fred Gibson, the appellant, sued out a writ of replevin for the possession of two mules of the value of $200 each and one two-horse wagon valued at $25, alleging that the same was wrongfully detained from him by defendant, S. J. Her rin. Gibson claimed as heir of Sarah Kee ton, his mother, and the defendant defended upon the theory that he had a bill of sale constituting a mortgage from Sarah Keeton to secure advances advanced to Joe Smith and Sarah Keeton as tenants upon his place. On the trial Herrin was permitted to testify in general to the transaction between Joe Smith, Sarah Keeton, and himself over the objection and exception of the plaintiff, who claimed that Herrin was incompetent because his testimony tended to establish his claim against the deceased person, Sarah Keeton, contrary to the statute; Herrin being a party to this suit, and the proceeding being a suit involving the title of the plaintiff and Herrin to this property. It is undisputed in the record that Sarah Keeton was the owner of the property involved in her lifetime, and that she moved the property upon the premises of Herrin and there worked with Smith as tenant under some arrangement between her and Smith, by which it is claimed that she would have one-half of the products grown upon the place after paying Herrin his onethird rent. The appellee undertakes to justify the admission of this evidence on the theory that it was not a claim against the estate of Sarah Keeton, but to establish liability against the partnership existing between Sarah Keeton and Joe Smith. [1, 2] We do not think that the evidence 1. PARTNERSHIP 67PARTNERSHIP PROP- can be admitted upon that theory. This is ERTY. a proceeding involving the property of Sa Where the owner of a team of mules and a wagon permits the use thereof on a farm un- rah Keeton and the establishing of a debt to der an agreement giving her one-half of the Herrin, and not a mere establishment of a products grown upon the place after payment of claim against a partnership and partnership rent, the mules and wagon do not become part-property. Herrin was permitted to go into nership property. 2. WITNESSES 159(12) COMPETENCY CLAIM AGAINST DECEASED. the details of all the agreements between him and Sarah Keeton, and to establish not Mules and wagon used by tenant of farm under an agreement giving owner one-half of prod-only the correctness of his books but the ucts, after deducting landlord's share, do not be- various items charged on the books to Sacome partnership property, and landlord claim- rah Keeton. We think this evidence was clearly incompetent under our statute (sec-identified by the signatures of the parties tion 1917, Code of 1906 [Hemingway's Code, $ 1577]). There are numerous other objections to the admission of evidence and exceptions taken, some of which were erroneous, but are not of any vital importance in deciding the issues, and we presume that they will not occur on the retrial of the cause. For the admission of the evidence of Herrin as to agreements and transactions between him and Sarah Keeton, judgment is reversed and the cause remanded. Reversed and remanded. (118 Miss. 5) MOSELAGE v. BENEVOLENT & PROTEC- CONTRACTS 9(1) - BUILDING CONTRACT SPECIFICATIONS. A contract for the restoration of a building, providing that all work was to be done as it was in the original building except "changing the windows in lodge room from casement to windows hung on weights," and that A. "shall be the sole arbiter of what work shall be new and what shall be repaired," was not void for uncertainty; and, where plaintiff contractor performed in accordance with such contract and procured a certificate from A., he was entitled to recover, although there had been no specifications prepared as provided by printed portion of contract requiring work to be done according to "specifications prepared by architect," since defendant by permitting the work to go on without requiring further specifications waived such requirement. Appeal from Circuit Court, Coahoma County; W. A. Alcorn, Jr., Judge. Action by J. H. Moselage against the Benevolent & Protective Order of Elks. Peremptory instruction given for defendant, and from the judgment based thereon plaintiff appeals. Reversed and remanded. Maynard & Fitz Gerald, of Clarksdale, for appellant. D. A. Scott, E. M. Yerger, and Cutrer & Johnston, all of Clarksdale, for appellee. STEVENS, J. Appellant, a contractor and builder, was plaintiff in the court below, and Clarksdale Lodge No. 977, Benevolent & Protective Order of Elks, was defendant. Plaintiff sued to recover a balance of $1,251 claimed to be due under a contract executed by the defendant lodge, by the terms of which appellant was "to provide all materials and perform all the work for the restoration of the Elks' Home at Clarksdale, which was recently damaged by fire, changing the windows in lodge room from casement to windows hung on weights. All work to be done as it was in original building, and under the direction and to the satisfaction of B. C. Alsup of the firm of Alsup & Smith, archi tects, as shown on the drawings and described in the specifications prepared by ar hereto and become hereby a part of this contract." The contract was upon a printed form containing 12 articles of agreement, and that portion of the language above quoted, referring to the drawings and specifications as a part of the contract, appeared in print on the original agreement, while the material portion obligating appellant to restore the damaged building, with the one exception of changing the windows from casement to windows hung with weights, and requiring him to do the work under the direction and to the satisfaction of Mr. Alsup, the architect, was typewritten. Article 2 is in printed language, and reads: "Art. II. It is understood and agreed by and between the parties hereto that the work included in this contract is to be done under the direction of the said architect, and that his decision as to the true construction and meaning of the drawings and specifications shall be final. It is also understood and agreedy and between the parties hereto that such additional drawings and explanations as may be necessary to detail and illustrate the work to be done are to be furnished by said architect, and they agree to conform to and abide by the same so far as they may be consistent with the purpose and intent of the original drawings and specifications referred to in art. I. "It is further understood and agreed by the parties hereto that any and all drawings and specifications prepared for the purposes of this contract by the said architect are and remain his property, and that all charges for the use of the same, and for the services of said architect, are to be paid by the said owner.' Near the conclusion of the contract is the following typewritten provision: "it is further understood and agreed that B. C. Alsup shall be the sole arbiter of what work shall be new and what shall be repaired." The sum agreed to be paid to the contractor was $5,251, and the declaration charges that the work has been completed, that the plaintiff has been paid the total sum of $4,000, that the balance due is $1,251, and that for this sum a certificate has been given appellant by the architect. The written certificate is attached to the declaration as "Exhibit B." The original was introduced by plaintiff on the trial of the cause, and the material portion of the certificate reads: chitects. Memphis. Tenn., May 15, 1912. _ $1,"Certificate No. 1630. Alsup & Smith, Ar251.00. To Clarksdale Lodge, No. 977, B. P. O. Eiks: J. H. Moselage, contractor for repairing of fire damage to lodge building, entitled to a payment of twelve hundred and fifty one dollars. Amount of contract.. Amt. previous paid.. Amt of this certificate.. Total to date... $5,251 00 $4,000 00 1,251 00 $5,251 00 $5,251 00 "Alsup & Smith, "Per B. C. Alsup." The defendant lodge refused to pay the balance, and to the declaration exhibited against it interposed a plea: "That it did not undertake and promise to pay, and is not indebted to the plaintiff as chitect, which drawings and specifications are charged by the plaintiff in his declaration." And attached to this plea of the general issue was a notice that the defendant expected to prove: "That there were numerous and glaring defects in the work, in the material used and in the manner that the said work was done, and that said defects were so obvious and apparent as to indicate and prove that the said certificate was obtained by fraud." In presenting this case to the court and jury, the plaintiff testified that he had performed the work and furnished the material in strict accordance with the written con tract, a copy of which had been filed as "Exhibit A" to the declaration, but objection was made to the introduction of this contract, "because the paper calls for a drawing and specifications and details, and provides * common and well-known process of doing the work, held, that the contract was not void for uncertainty, and the contractors might proceed to do the work in the usual and ordinary way, or refuse to perform the work for want of specifications, and seek damages for the nonfulfillment of the contract in that respect." In that case the contract declared that: "All the above work is to be done and executed in accordance with the specifications of the civil engineer now on file in the mayor's office." This case is stronger on the facts against the contractors than the case at bar. In has been sent up for our inspection shows the present case the original contract which on its face that the reference to the draw ings and specifications was a printed form, that they shall be made a part of the con- The record does show that counsel for the plaintiff, when objection was made to the introduction of the contract, asked permission of the court to amend the declaration; but when the court announced, upon the insistence of counsel for the defendant, that the case be continued in the event the amendment was allowed, the plaintiff withdrew his request to amend and stood upon his declaration as filed. The trial judge also sustained an objection to the introduction of the written certificate given plaintiff by the architect. It was error to exclude the written contract and the written certificate given by the architect. In Womble v. Hickson, 91 Ark. 266, 121 S. W. 401, the building contract stipulated that the house was to be like the "Rowton house." Objections were there made to the introduction of the contract because the specifications were not presented, and the objection was overruled and the contract admitted in evidence. In Hitchcock v. Galveston, Fed. Cas. No. 6,534 (3 Woods, 287), the Circuit Court, as reflected by paragraph 10 of the headnotes, held: and that the name of the architect fol- "Where the contract itself required the worked to have been agreed upon by them when to be done according to the specifications on file, and none were on file, but the contract itself specified the materials, and there was a the contract was made; also, testimony as to what kind of a front the building was to have. This testimony was objected to on the ground that this was offered before the written contract was made, and that the testimony contradicted the written contract." The court held that the objection was not well taken; that "without this testimony the contract was imperfect. The plans and specifications were already understood, but had not been written out by the architect. It was no fault of the plaintiff that they were not, and the only evidence of what they were was given and it was proper." So we say here that, unless the contract offered in evidence was void upon its face for uncertainty, then it should have been received in evidence. See, also, Myer v. Fruin (Tex.) 16 S. W. 868. Reversed and remanded. (118 Miss. 15) Ex parte WHITE et al. (No. 20178.) (Supreme Court of Mississippi, Division B. June 17, 1918.) 1. EXECUTORS AND ADMINISTRATORS -JOINT POWER TO SELL REALTY. 138(8) Under will providing, among other things, that all property be kept intact and managed absolutely by testator's wife and son-in-law, appointed executors without bond, that "The sale of any real estate as to time, price, and parcel is left absolutely with my executors," and that "No accounting shall be required as to receipts and expenditures," held that the power to sell and convey real estate did not survive the death of the wife; the will investing the executors with a discretion to sell real estate jointly only. 2. WILLS 439-CONSTRUCTION. The controlling question in each case is to arrive at the intention of the testator. "It is my will, and I order and direct, that as soon as practicable all stocks and bonds I may own at my death, except bank stock and life insurance bonds, be converted into money, and invested in income-bearing real estate, either lands, or storehouse property in thriving cities. "I give to my sister, Mrs. Bettie Wade. the little home on which she resides, near McCool, Attala county, Miss., and further will that an annuity of two hundred dollars be paid the said sister, in two equal half-yearly sums, during her natural life. To my sister, Mrs. Allice Parker, now of Texarcanna, Texas, I give an annuity of two hundred dollars, to be paid to her, in person, the remainder of her natural life, in two equal half yearly payments. "I will that fifty dollars per year for ten years be paid to the foreign mission board of the Southern Baptist Convention. "I will that fifty dollars per year for ten years be paid to the Home Mission Board of the Southern Baptist Convention. "I will that an annuity of fifty dollars, be paid for ten years to the State Board of the Mississippi Baptist State Convention. "I give an annuity of fifty dollars for ten years to the Baptist Orphanage located at or near Jackson, Miss. "I will that all income from the Carry Heari Hurt Memorial Building at Blue Mountain, Miss., after keeping up repairs, be applied to the education of worthy, poor girls, indefinitely. "Money derived from insurance on my life, I construe as cash, and direct the investment of it, in real estate as specified in second clause above. "I will that my daughter, Mary Ella White, and her children and my granddaughter, Carrie Hearn Hurt, share equally in all my estate, both real and personal after the above named bequests are arranged for, and that there be no distinction in providing for the wants, education and all other advantages of said children. "I will that after the changes named above my property all be kept intact, and that it be managed absolutely by my wife, Hattie P. Appeal from Chancery Court, Clay Coun- Hearn, and my son-in-law, James M. White, ty; A. J. McIntyre, Chancellor. Petition by James M. White, surviving executor, and all other parties in interest, to construe the will of S. L. Hearn, deceased. From a decree of the chancery court construing said will, said executor and all parties in interest appeal. Affirmed. whom I hereby appoint my executors without bond. "The sale of any real estate as to time, price and parcel is left absolutely with my executors. "No accounting shall be required as to reeach of the children my executors shall deterceipts and expenditures. At the majority of mine as to the property best suited to each particular child and the proper time at which Kimbrough &. Valentine, of West Point, to turn over his or her part; always bearing for appellants. STEVENS, J. In this case an appeal is prosecuted from a decree of the chancery court of Clay county construing the last will and testament of S. L. Hearn, and holding that by the terms of the will the power to sell and convey real estate therein given to Mrs. Hattie P. Hearn, executrix, and James M. White, executor, did not survive after the death of Mrs. Hearn so as to empower James M. White, surviving executor, to sell the lands. The petition to construe the will is filed by all parties in interest. The will is not long, and is here set out in full: "Be it remembered that I, S. L. Hearn, of the city of West Point, County of Clay, and state of Mississippi, do make this my last will and testament, in the manner following: "That is to say, I order and direct that all my just debts be paid with all convenient speed. in mind that my will is, all the children shall share equally, and that my daughter, Mary Ella White, share equally with them in the division. "I will that the income from my property, after providing for the bequests named, be used by my daughter, Mary Ella White, and my wife, Hattie P. Hearn, for their use, benefit, of all the children named. and pleasure and for the benefit and pleasure "If Carrie Hearn Hurt, my granddaughter named, should die before her majority, I will that her part in my estate be equally divided Mary Ella White. Likewise, the part of any between the living children of my daughter other child, that should die before majority, shall be equally divided between the surviving children. "My will is that all annuities named take date from the date of probate of this will. "In witness whereof, I, the above-named testator, have hereunto set my hand and seal, this the 20th day of March. in the year of our Lord, nineteen hundred and five. "S. L. Hearn [Seal.] "Then and there signed, sealed and published by S. L. Hearn, the testator, as and for his |