After argument pursuant to re-hearing granted and further consideration of the record in this case, we find that it appears that the Chancellor's decree is based upon the assumption that the purchase price of the property involved (see our opinion filed herein on July 6, 1938) was $10,000.00 and we followed that assumption in our opinion, supra.
It appears, however, that there is room for grave doubt as to whether or not the final agreed purchase price was $10,000.00. It appears to us that there is evidence in the record to support the finding that the original contract between Lee and McMillen was that McMillen should pay Lee $10,000.00.
Two Thousand Five Hundred ($2500.00) Dollars was paid in cash. Five Thousand ($5000.00) Dollars of the balance was due to be paid in semi-annual installments of $500.00 each. The payment of the remainder of the balance was not provided for in the contract. Before the first payment became due the parties amended the contract, as follows:
"This agreement is attached to and becomes a part of this Agreement. That W.E. Lee, for himself, his heirs, and assigns, agrees to accept as part payment hereof for the lot mentioned and described herein a note in the sum of $3250.00 to run five (5) years from date without interest. At end of five years, W.E. Lee agrees for himself, his heirs and assigns to accept a first mortgage on lot *Page 442 herein mentioned and described in this agreement, in the sum of $3250.00 with interest at 6% payable in three annual payments, with the understanding that proceeds from fruit grown on this lot — as herein mentioned and described — shall be applied to the payment of the mortgage, excepting sufficient monies to pay for fertilizer, spraying and the doing of all other necessary work to this grove.
"In case there is not sufficient fruit to meet payments as they fall due, the party of the second part agrees to meet and pay the payments as they become due and payable."
That this reduced the purchase price to $9,000.00.
Then on February 10, 1923, the parties agreed on a discount of the $3250.00 note to $1400.00 plus 6% interest on that amount for five (5) years, viz.: $420.00, on the payment of $1000.00. This reduced the final purchase price to $2500.00 cash payment, $1000.00 paid at discount of $3250.00, $1820.00 note, $1820.00 on note discounted and $3250.00 note and mortgage to be given at end of five years, or a total of $8570.00.
If this was the real result of the transaction between the parties, and the agreed balance due when McMillen quitclaimed to Lee was $4820.00, then the difference between this sum $4820.00 and the final agreed purchase price $8750.00 was $3750.00, which McMillen had evidently paid to Lee instead of $5180.00 as found by the Chancellor. Lee paid McMillen $3,333.33.
So it is that if the final decree entered by the Chancellor is otherwise correct, and we agree that it is, and the above statement portrays the real facts, then McMillen is only entitled to a lien to secure the difference between $3750.00 and $3,333.33, or $316.67, with interest from November 2, 1925, to date.
The record is so unclear in regard to these matters that we think further testimony should be taken relative thereto *Page 443 and, thereupon, this phase of the matter should be reconsidered by the Chancellor and that thereupon the decree should be modified, or not, pursuant to the Chancellor's findings of fact on this question.
It is, therefore, ordered that the decree be reversed insofar only as the matters herein referred to are involved and that the cause be remanded for further proceedings as herein indicated.
So ordered.
TERRELL, C.J., and WHITFIELD, BROWN, BUFORD and CHAPMAN, J.J., concur.
