Stone Inv. Co., Inc. v. Estate of Robinson, et al.


<- Return to Search Results


Docket Number: 2009-CA-01971-COA
Linked Case(s): 2009-CA-01971-COA ; 2009-CT-01971-SCT

Court of Appeals: Opinion Link
Opinion Date: 09-06-2011
Opinion Author: Griffis, P.J.
Holding: Affirmed

Additional Case Information: Topic: Contract - Administrative authority of executrix - Section 91-7-41 - Section 91-7-197 - Section 91-7-187 - Section 91-7-199 - Valid testamentary power of sale - Good and merchantable title
Judge(s) Concurring: Lee, C.J., Myers, Roberts, Carlton, Maxwell and Russell, JJ.
Judge(s) Concurring Separately: Ishee, J., concurs in part without separate written opinion
Concur in Part, Concur in Result 1: Irving, P.J., and Barnes, J., concur in part and in the result without separate written opinion
Nature of the Case: CIVIL - CONTRACT

Trial Court: Date of Trial Judgment: 12-04-2009
Appealed from: Stone County Chancery Court
Judge: James H.C. Thomas, Jr.
Disposition: PLAINTIFF’S CLAIM FOR RETURN OF EARNEST MONEY DISMISSED
Case Number: 2007-0112-TH

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Stone Investment Company, Inc.




JACK PARSONS TADD PARSONS DAWN SMITH



 
  • Appellant #1 Brief

  • Appellee: Estate of Arlan Robinson and William Head Realty HERBERT J. STELLY JOHN DOYLE MOORE  

    Synopsis provided by:

    If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals
    hand downs please contact Tammy Upton in the MLI Press office.

    Topic: Contract - Administrative authority of executrix - Section 91-7-41 - Section 91-7-197 - Section 91-7-187 - Section 91-7-199 - Valid testamentary power of sale - Good and merchantable title

    Summary of the Facts: Stone Investment Company, Inc. brought an action against the Estate of Arlan Robinson and William Head d/b/a William Head Realty to recover the earnest-money deposit and other damages that resulted from the breach of a real-estate contract. The Estate and Head responded with their claims to the earnest-money deposit. The chancellor ruled that Stone Investment had breached the contract and forfeited the earnest-money deposit. The chancellor awarded the earnest money deposit to the Estate and Head. Stone Investment appeals.

    Summary of Opinion Analysis: Issue 1: Administrative deficiencies Stone Investment argues that the executrix of the Estate did not have the authority to execute the purchase contract or the deed of conveyance. Stone Investment argues that the executrix failed to file an oath pursuant to section 91-7-41, and the letters testamentary did not legally issue. Stone Investment argues that the executrix failed to serve all parties in interest by summons or publication to sell the property as required by section 91-7-197. Stone Investment also argues that the executrix failed to get the court to adjudicate the selling of real estate in preference to selling personal property to pay debts of the estate as required by section 91-7-187. Stone Investment argues that a hearing was not held as required by section 91-7-199, and the chancellor did not hear evidence to satisfy the need to sell the property to pay debts. Basically, Stone Investment challenges the administrative authority of the executrix. The chancellor’s judgment recognized that deficiencies in the administration of the estate existed. The chancellor, however, determined these deficiencies could have been cured; thus, he ruled that Stone Investment had breached the contract. While the executrix’s failure to follow the statutory procedure is troubling, the statutory procedure does not include an absolute remedy or legal consequence for the failure to comply with the requirement. Here, the will directed the manner in which the sale was to proceed, by way of auction. Because this was an express testamentary power of sale, the extent of the executrix’s authority is governed by the language of the will itself; it is not derived from a statute. The statutes only apply in the absence of such authority to sell. When an executrix possesses power under the will to sell the land, the sale of such land is not considered a “judicial sale.” Therefore, when a valid testamentary power of sale exists, there is no need to obtain a court order justifying the sale. Stone Investment’s contention that Martha was required to post bond in order to sell the subject property is also misplaced. The failure of bond does not affect the validity of the sale; rather, the purpose of the bond requirement is to ensure proper application of the funds. Further, the chancellor apparently cured any potential administrative defects when the chancellor authorized the sale. Issue 2: Good and merchantable title Stone Investment argues that the Estate failed to tender good and merchantable title and a proper deed within the prescribed deadline for closing set forth in the purchase agreement. Stone Investment also argues that the deed tendered was improper because it was subject to encumbrances on the property. There was conflicting evidence of Stone Investment’s refusal to close. Initially, Stone Investment indicated that its refusal was based on deficiencies in the parcel’s title due to the sewer easement. However, the president of Stone Investment later testified that the reason for Stone Investment’s refusal to close on the subject property had nothing to do with the existence of the sewer easement. Rather, Stone Investment had purportedly promised Fred’s, a prospective purchaser of the property, that the parcel would be in place by April 13, 2006. Apparently, however, Fred’s was no longer interested in purchasing the property from Stone Investment in late July 2006. The chancellor considered the testimony of the competing four expert witnesses and found that the closing would have cured “any deficiencies by the payment of liens and other title considerations.” The chancellor also rejected the claim that the sewer easement affected the merchantability of title. In addition, the chancellor found the reduced offers to purchase the property, letters dated August 3, 2006, and September 26, 2006, contradicted its claim that merchantable title could not be conveyed. Thus, the chancellor found the purchase contract was a binding contract and that merchantable title could be conveyed, with the deficiencies cured at closing. The chancellor’s findings of fact are supported by the evidence, and the chancellor’s judgment was not manifestly wrong, clearly erroneous, and did not apply an erroneous legal standard.


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court