Washington v. Soria

Citations

• 73 Miss. 665

Syllabus

<p>1. Statute of Frauds. Vendor cmcl vendee. Recovery of purchase money. Form of action. Code 1893, $ 671.</p> <p>When the vendee of land has taken possession under a conveyance reciting a consideration of a certain amount paid in cash and a balance to be paid in installments at specified dates, to secure which a lien is reserved in the deed, the statute of frauds does not prevent a recovery of the unpaid purchase money, although the vendee may have signed no written promise to pay; and the vendor, under the liberal provisions of $ 671, code 1893, for the simplification of pleadings, can maintain therefor his action on the case. Leev. Newman, 55 Miss., 365, criticised; Stdrstonv. Jaudon, 43 lb., 380, overruled.</p> <p>3. Limitations of Actions. Contract in writing. Ttwee yea/rs stapute, code 1893, $ 3739. Six yea/rs StaPute, code 1893, $ 3737.</p> <p>Whether the vendor in such transaction elects to proceed on the promise contained in the deed or that implied by law from the vendee’s acceptance of the deed, his right of action rests upon a contract provable, not by parol but by a writing, and the statute of limitations applicable to the case is not that of three years, provided by $3739, code 1893, in respect to unwritten contracts, but that of six years, provided by $ 3737, code 1893, in respect to all actions for which no other time is fixed.</p> <p>3. Remedy oe Vendor. Concurrent jurisdiction of equity. Statutes of limitation, code 1892, §2762. Tenyea/rs statute, code 1892, §2763.</p> <p>As the vendor.can maintain his action at law for the purchase money, it cannot be said, on his proceeding in equity to enforce his lien therefor, that his cause of action rests upon the “existence of a trust not cognizable by the courts of the common law, ” and it is not controlled by § 2763, code 1892, which limits to ten years the period within which proceedings of that character may be brought, but by § 2762, code 1892, which declares that “whenever there may be a concurrent ju