Mississippi Reports

EVERETT v. HUBBARD, 199 Miss. 857 (1946) 25 So.2d 768
EVERETT v. HUBBARD. No. 36112. Supreme Court of
Mississippi, In Banc. April 22, 1946.

1. SPECIFIC PERFORMANCE.

Agreement by mortgagee under trust deed to purchase realty
at foreclosure sale and convey one-third undivided
interest to unsecured creditor of deceased mortgagor who
agreed not to contest mortgagee’s claim and to share with
him amount collected on unsecured claims against estate,
was not supported by sufficient consideration to warrant
specific performance thereof, regardless of whether
parties knew when agreement was made that unsecured claims
were uncollectible, where nothing was collected thereon,
unsecured creditor knew of no ground for contesting
mortgagee’s claim, and mortgagee paid fair value for the
property. Page 858

2. SPECIFIC PERFORMANCE.

Specific performance of contracts in equity is not a matter
of right but of sound legal discretion, and will not be
decreed unless contract is just and fair in all its parts.

3. EQUITY.

Equity will not generally relieve a party from a contract
made under a mistake or in ignorance of the law but will
grant relief where both parties enter into contract under
a mutual mistake as to a material fact, without which
mistake contract would not have been made.

4. SPECIFIC PERFORMANCE.

Benefit to promisor, loss, detriment or inconvenience to
promisee, or promisee’s compliance with agreement to
refrain from doing something which he had the right to do,
though it may afford sufficient consideration to support a
contract, does not necessarily warrant specific
performance thereof.

APPEAL from the Chancery court of Simpson county, HON.
D.C. ENOCHS, Special Chancellor.

R.C. Russell, of Magee, and Lyell & Lyell, of Jackson, for
appellant.

It is well settled that a compromise of conflicting and
doubtful claims, or giving up a suit or proceeding
instituted to try a question respecting which the law is
doubtful, is a sufficient consideration to support an
agreement or a promise to pay a stipulated sum.

Field v. Weir et al., 28 Miss. 56.

Any benefit, however slight, resulting to the promisor by
act of the promisee, though there may be no adequacy in
point of value, or any loss, trouble or inconvenience
though trifling but not wholly worthless in law and fact
Page 859 sustained by the promisee at the instance of the
promisor and although the promisor obtains no advantage or
benefit from the stipulated act, is a sufficient
consideration.

Byrne v. Cummings, 41 Miss. 192.

It is a well settled rule that the compromise of a matter
in dispute is a sufficient consideration for a contract,
and will bind both parties to the settlement when entered
into without fraud.

Long et al. v. Shackleford et al., 25 Miss. 559.

There is a sufficient consideration for a promise if there
be any benefit to promisor or any loss, detriment or
inconvenience to the promisee or if the person to whom the
promise is made refrains from doing anything which he has
the right to do, whether there be any actual loss to him or
actual benefit to the party making the promise, and such
consideration is sufficient even though it be inadequate.

Miller v. Bank of Holly Springs, 131 Miss. 55, 95 So. 129.

See also Calhoun v. Calhoun, 37 Miss. 668; Brown v.
Commonwealth, 135 Am. St. Rep. 486; 17 C.J.S. 474, Sec. 127.

Edwards & Edwards, of Mendenhall, for appellee.

The right of the complainant here to sue for the specific
performance of his contract is dependent upon his proving
that he has complied with the contract on his part and that
he has done all the contract required him to do by its
terms.

McMath v. Johnson, 41 Miss. 439; Jayne v. Drake (Miss), 41
So. 372.

There can be no contract without the mutual meeting of the
minds of the parties thereto.

6 R.C.L. 620, Sec. 41.

A court of equity will not enforce the performance of an
unconsciousable contract, a hard or an unfair bargain, or
one on an insufficient consideration, and more especially
where the complainant has lost nothing by his deal, Page
860 and nothing was gained by the defendant by reason of
the contract, but here we have one void for want of
consideration or failure of consideration.

Equity will grant relief where the parties enter into a
contract under a mutual mistake in a material fact, without
which mistake the contract would not have been made.

Nabours et al. v. Cocke et al., 24 Miss. 44.

A court of equity will not decree the specific performance
of a contract where the party seeking the relief has failed
to comply with his part of the agreement within the time
appointed for that purpose, and on the terms as stipulated.

Lewis v. Woods, 4 How. (5 Miss.) 86.

Argued orally by R.C. Russell, for appellant.

McGehee, J., delivered the opinion of the court.

The sole question presented for decision by this appeal is
whether or not the trial court was in error in declining to
compel the specific performance of the contract here
involved, on the ground that the same was not supported by
a sufficient consideration to justify the granting of such
relief.

It appears that on the 16th day of November, 1932, R.L.
Everett, the appellant, and J.A. Jones, as agent of the
Hazlehurst Oil & Fertilizer Company, both being unsecured
creditors of the estate of T.J. Singletary, deceased,
entered into a written contract with Scott Hubbard, now
deceased, husband of the appellee, who held a note and deed
of trust for the sum of $6,000 of the said T.J. Singletary
on a brick hotel building in the town of Magee, and by
which contract it was agreed, in substance, that for the
mutual promises and considerations therein stipulated as to
the settlement of their various claims against the estate
of Singletary then being administered in the Chancery
Court, and the benefits to be derived by them in settling
and compromising their claims to save Page 861 the expense
of litigation, the said Scott Hubbard was to have a decree
for the sum of $4,000 principal, and $400 as attorney’s
fees on his $6,000 note and deed of trust against the hotel
building in a suit then pending for the foreclosure of the
said deed of trust, and that at a sale of the property by
a commissioner to be appointed for that purpose, the said
Scott Hubbard was to appear and bid on the property not
less than the sum of $6,600, if necessary to over-bid any
other bidder or bidders at the commissioner’s sale, and
that thereafter the said Scott Hubbard, or his heirs,
executors or assigns, would execute to the said R.L.
Everett, the appellant, a deed to a one-third undivided
interest in said property; that appellant and J.A. Jones as
agent of the said Hazlehurst Oil & Fertilizer Company, were
not to contest each other’s accounts against the estate of
T.J. Singletary, deceased; and that the said R.L. Everett
was to probate his claims in full against the estate,
aggregating the sum of approximately $3,500 and attorney’s
fees, and that after he “shall have collected said sum or
so much thereof as can be legally collected from said
estate, and received title to a one-third interest in said
property . . . from the said J.S. Hubbard in the event he
succeeds in purchasing same as hereinabove provided,” the
said three parties should divide the net amount that might
be collected, “of the claims of the said R.L. Everett thus
probated and collected in the ratio or proportion of their
respective accounts or claims to the aggregate sum total of
the said three claims as above mentioned as against said
estate.” That is to say, the amount collected should be
divided on the ratio that the $4,400 decree in favor of
Hubbard, the $3,500 claim of Everett, and the $475 claim of
the Hazlehurst Oil & Fertilizer Company should bear to the
total thereof, intending thereby that the said Hubbard
should receive 4400/8375 of the sum collected on the
unsecured claims, in consideration of his agreement to
convey a one-third interest in the hotel property as
aforesaid. Page 862

It is the contention of the appellant, R.L. Everett, that
he brought about a compromise of the suit whereby Scott
Hubbard was undertaking to foreclose his note and deed of
trust against the hotel property, by inducing Mrs.
Singletary to consent to a decree for the said sum of
$4,400 on the $6,000 note and deed of trust involved in
that suit. But this service on the part of the said Everett
was outside of and beyond the written contract sued on
herein. Moreover, the testimony is in sharp conflict as to
whether or not he brought about such compromise. In fact,
it appears that Mrs. Singletary and her attorney were
conceding that the estate owed to Scott Hubbard an amount
approximating the sum for which the decree was taken, but
not the full amount of the $6,000 note.

The appellant further contends, as we understand his
contention, that during the lifetime of the said T.J.
Singletary he stated to the appellant that he owed Scott
Hubbard some money, but did not state the amount, and that
since he was willing to testify to that effect, and Scott
Hubbard was incompetent as a witness to establish the
indebtedness claimed against the hotel property, the
efforts of appellant in bringing about the compromise,
together with his efforts in undertaking to collect his
probated claim on which nothing was ever realized on
account of the insolvency of the Singletary estate, was a
sufficient consideration for the agreement of Hubbard to
convey to him an undivided one-third interest in the hotel
property.

And the trial court found as a fact that the appellant did
all that he could to collect his own claim against the
estate, and that he refrained from bidding on the hotel
property at the commissioner’s sale because of the
agreement of Hubbard to convey to him an undivided
one-third interest in said property. It appears, however,
that the amount of $4,400 bid by Hubbard at the
commissioner’s sale, together with the sum of nearly $2,000
that he had to pay out in redeeming the property from tax
sales, etc., amounted to the full value of the property, so
far Page 863 as the record here discloses. It does not
appear that the appellant would have offered more for the
property at the sale than Hubbard paid for the same,
including the taxes.

The commissioner’s sale was confirmed in 1933, and in
August, 1938, Mrs. Singletary and Mrs. Tommie Singletary
Massey, an adopted daughter of the Singletarys, filed a
suit to set aside the same as fraudulent on account of the
contract sued on in the present case. They made both
Hubbard and the appellant, Everett, parties defendant in
that suit. Hubbard, in his sworn answer thereto, alleged
that at the time the contract was executed all of the
parties thereto realized that the Singletary estate was
insolvent. He did not allege, however, that they realized it
was insolvent to the extent that no part of the probated
claims could be collected. Everett made his answer a cross
bill, and prayed for the specific performance of the
contract now in question. In that suit, as between the
heirs of T.J. Singletary, deceased, and the said Scott
Hubbard, the trial court canceled the commissioner’s sale
to Hubbard insofar as Mrs. Massey was concerned, as she was
not a party to the foreclosure proceeding in chancery, but
held that Mrs. Singletary was estopped to bring the suit.
However, the trial court pretermitted any hearing on
Everett’s cross bill, pending the appeal of the main suit,
and on such appeal this Court held that Hubbard had
acquired a good title to the property at the commissioner’s
sale, and remanded the cause for adjudication of the issue
as between Hubbard and Everett. See Hubbard v. Massey, 192
Miss. 95, 4 So.2d 230, 494.

From the opinion in that case it will be found that the
Court did not pass upon the question as to whether the
contract now involved was supported by a sufficient
consideration, such as to require specific performance, as
between Hubbard and Everett.

Thereafter, upon the trial under the cross bill of
Everett, from which the present appeal is taken, the Page
864 Chancellor found as a fact from the testimony of both
Everett and Hubbard in that behalf that it was contemplated
at the time the contract was entered into that a
substantial part of the probated claims could be collected
from the estate. And we are not justified in disturbing
this finding of fact, even though Hubbard had alleged, in
his answer to the suit filed against him by Mrs. Singletary
and Mrs. Massey, that it was known at the time of the
execution of contract that the Singletary estate was
insolvent.

At any rate, if we should assume that it was known at the
time of the execution of this contract that nothing could
be collected on the probated claims, then no valuable
consideration was contracted for to support the agreement
on the part of Hubbard to convey an undivided one-third
interest in the property to the appellant, Everett. On the
other hand, if we assume that it was contemplated, as found
by the trial court, that some substantial amount would be
collected on the probated claims, to be divided with
Hubbard, then the consideration failed when the estate was
later declared insolvent, and when nothing was collected on
such claims to be divided.

Moreover, an agreement among the parties to the contract
that neither of them would contest the claim of the other
would not furnish a sufficient consideration to require the
performance of the contract by Hubbard, since the appellant
admitted as a witness that he knew of no ground on which he
could properly contest the indebtedness claimed by Hubbard
against the Singletary estate. And we do not think that the
other things claimed by Everett to constitute a
consideration were sufficient to require a court of equity
to compel the specific performance of the contract. The
principle was announced in the early case of Daniel v.
Frazer, 40 Miss. 507, and from which there has since been
no departure, that, “The specific performance of contracts
in equity is not a matter of right, but of sound legal
discretion, and it will never Page 865 be decreed unless
the contract is just and fair in all its parts.”

And on the question as to whether or not it was
contemplated that Hubbard should execute a deed in favor of
the appellant, Everett, for a one-third undivided interest
in property which was then admittedly worth more than
$6,000, and without regard to whether or not anything was
collected on the probated claims in which he could share,
it was held in the case of Nabours et al. v. Cocke et al.,
24 Miss. 44, that although “It is true that, as a general
rule, a court of equity will not relieve a party from a
contract made by him under a mistake, or in ignorance of the
law. . . . it is no less true that it will grant relief
where both parties enter into the contract under a mutual
mistake in a material fact, and without which mistake the
contract would not have been made.” In the instant case it
would not be reasonable to assume that Hubbard would have
agreed to convey to the appellant a one-third undivided
interest in the property here involved, unless the parties
thereto had mutually thought, as they testified on the
trial that they did think, that a substantial portion of
the probated claims would be collected and divided with the
intended grantor.

Finally, it should be said that the authorities relied upon
by the appellant to the effect that any benefit to a
promisor, or any loss, detriment or inconvenience to a
promisee, or where the person to whom the promise is made
refrains from doing anything which he has the right to do,
whether there is any actual loss to him or actual benefit
to the party making the promise, is a sufficient
consideration, though it be inadequate — do not
necessarily require that the contract be enforced by decree
for specific performance, in view of the rule hereinbefore
quoted from the case of Daniel v. Frazer, supra. Nor is the
case of Grandberry et al. v. Mortgage Bond & Trust Company,
159 Miss. 460, 132 So. 334, involving an agreement between
lien holders interested in property to be sold under a deed
of trust, an authority in regard to an Page 866 agreement
between a lien holder and the unsecured creditors of a
wholly insolvent estate, insofar as constituting a
sufficient consideration to compel specific performance is
concerned.

Therefore, the decree denying specific performance, herein
appealed from, should be affirmed.

Affirmed.