
    Hennessey v. Wilson, et al.
    No. 39782
    November 14, 1955
    83 So.2d 176
    
      Teller & Biedenharn, Vicksburg, for appellant.
    
      
      John B. Gee, Vicksburg, for appellees.
    
      APPELLANT IN REPLY.
   Arrington, J.

On August 4, 1953, in consideration of $500, appellees, owners of a tract of land, granted appellant a 90-day option to purchase the land for $30,000. Mississippi Power and Light Company filed its petition in eminent domain to condemn a one hundred foot strip through the land for a power line right of way. Appellees, as owners of the land, and appellant, holder of the then unexpired option, were made parties defendant. Before trial of the eminent domain suit, appellant’s option expired. The court declined to allow the power company to dismiss the suit as to the appellant, after which the power company took a non-suit as to the appellant. Thereafter, at the instance of appellant and appellees, the court permitted appellant to intervene. The appellant and appellees were represented by the same attorney in the eminent domain proceedings, and an agreed jury verdict and judgment was entered for $6,000, and the Mississippi Power and Light Company paid this amount into the registry of the court to he disbursed to the defendants, according to the court’s order, “in the proportion and amount due each respectively as their interest, if any, may appear. ’ ’

The issue here involves the division of the $6,000 between appellees and appellant and arose in the county court when appellees petitioned the court to disburse the entire amount to them on the ground that appellant’s option had expired and his rights and interest in the land, if any, had terminated. The county judge entered an order dividing the money — $4750 to appellees and $1250 to appellant. On appeal to the circuit court, the county court was reversed and the whole amount of $6,000 was awarded to appellees.

On the petition for disbursement of the funds, there was only one proper issue before the county court: What was the respective interests of appellees and appellant in the land through which the right of way was condemned?

Appellant’s option had expired when the agreed order for $6,000 damages was entered. After the option expired, appellant had no interest whatever in the land. He had nothing that the power company could take and no interest that could he damaged. Since the county court could award appellant a part of the $6,000 only on the basis of tbe interest of tbe appellant in tbe land, it was error to award bim any part of tbe funds wben be bad no interest in tbe land. Miss. State Highway Commission v. West, 181 Miss. 206, 179 So. 279. Tbe only way the option could be renewed as an enforcable obligation would be by tbe execution of a new writing, signed by tbe party to be bound. Nason v. Morrissey, 218 Miss. 601, 60 So. 2d 506.

Appellant offered proof of an oral contract with appellees for division of tbe award in tbe eminent domain suit. Just wben sucb contract was made, whether before or after tbe expiration of tbe option, is not clear; but it may be conceded, but not decided, that tbe evidence was sufficient to justify a finding of fact by tbe county court that sucb contract was made. Several questions arise as to tbe validity and binding effect of sucb contract, which we deem ubnecessary to consider. We are of tbe opinion that any issue involving an agreement between appellant and appellees not vesting in appellant an interest in tbe land was beyond tbe scope of any legitimate issue arising on tbe petition for a disbursement of tbe funds paid into the registry of tbe court in tbe eminent domain suit. Any agreement involving an interest in tbe land would not be binding unless in writing under tbe statute of frauds. If there bad been a written assignment over a part of tbe fund, we would have a different case.

We are of tbe opinion that the judgment of tbe circuit court in reversing tbe judgment of tbe county court and directing tbe payment of tbe $6,000 to tbe Wilsons was correct, and should be and is hereby affirmed.

Affirmed.

Lee, Kyle, Ethridge and Gillespie, JJ., Concur.  