Fultz v. Peterson

Mississippi Supreme Court October 15, 1900

Fultz v. Peterson, 78 Miss. 128 (Miss. 1900)

Calhoon

Opinion of the Court

Calhoon, J.,

delivered the opinion of the court.

The conclusion of the chancellor on the facts should not be disturbed in the main case, or on the report of the commissioner. We think the report of that officer shows nothing of which appellants can complain, but that they may congratulate themselves on the result. Code 1892, § 4230, cannot avail appellants. Klein v. McNamara, 54 Miss., 90; Runnels v. Jackson, 1 How. (Miss.), 358. Nor can code 1892, §4233, *132avail them, because in this case Peterson never parted with the possession of the land. While he was not personally in possession, he was by his tenant, who was known to be such by all parties. Heirmann v. Stricklin, 60 Miss., 234.

Affirmed.

Reference

Full Case Name: Jacobus D. Fultz v. Sophia Peterson
Cited By: 4 cases
Status: Published
Syllabus: 1. Statute of Frauds. Trusts. Absolute deed. Mortgage. Code 1892, g 4230. Parol evidence. A deed absolute in form may be shown by parol evidence to be in reality a mortgage to secure a part of the purchase money advanced by the grantee therein, on an agreement with the purchaser, in possession of the land, to convey to him on payment of the sum so advanced, § 4230, code 1892, requiring declarations of trust to be in writing, having no application in such case. Runnels v. Jacltson, 1 How. (Miss.), 358; Klefoiv. McNamara, 54 Miss., 90. 2. Same. Code 1892, ? 4233. Section 4233, code 1892, excluding parol evidence to show that an absolute deed was intended to be a mortgage, has no application where the debtor was in possession of the mortgaged property when the deed was executed, and remained in possession.