                        IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2002-CA-02052-SCT

CHRISTOPHER A. FERRARA

v.

NANCY S. WALTERS AND DENNIS R. STRONG


DATE OF JUDGMENT:                            9/12/2003
TRIAL JUDGE:                                 HON. CARTER O. BISE
COURT FROM WHICH APPEALED:                   HARRISON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                      THOMAS E. VAUGHN
ATTORNEYS FOR APPELLEE:                      DAVID A. WHEELER
                                             CANDACE C. WHEELER
NATURE OF THE CASE:                          CIVIL - CONTRACT
DISPOSITION:                                 REVERSED AND REMANDED - 9/22/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, P.J., GRAVES AND RANDOLPH, JJ.

       GRAVES, JUSTICE, FOR THE COURT:

¶1.    On or about December 4, 2001, Nancy S. Walters and Dennis R. Strong (the “Sellers”)

entered into a contract with    Christopher A. Ferrara to sell certain real property located in

Harrison County, Mississippi.   Prior to closing, Ferrara discovered a defect in the chain of title

which was not properly cured by the Sellers.        Ferrara filed suit in the Chancery Court of

Harrison County seeking, inter alia, declaratory judgment and specific performance.            The

Sellers counterclaimed alleging slander of title, an intentional interference with a contract, and

abuse of process.   Following a bench trial, the chancellor entered judgment denying any relief

to Ferrara, but granting the Sellers compensatory damages in the amount of $15,358.97 and
punitive damages in the amount of $30,000.00. Aggrieved by the chancellor’s rulings, Ferrara

appeals and asserts multiple assignments of error.

                             FACTS AND PROCEDURAL HISTORY

¶2.     Ferrara, a real estate venture capitalist, sought to purchase a large tract of land in Biloxi,

Mississippi, for a substantial commercial project.           Ferrara located a prime area for

development and contracted for the purchase of contiguous properties within the tract. On or

about December 4, 2001, the Sellers entered into a contract with Ferrara to sell one lot in a

line of lots needed to provide access to the project.      The subject property included a house

located on a 50 feet by 85 feet lot which previously belonged to the Sellers’ mother and father,

Mr. and Mrs. J.W. Strong. Ferrara and the Sellers agreed to a purchase price of $37,500, with

the closing date set for 45 days after the acceptance by the Seller. The contract also contained

a provision that the possession date was upon the close of the sale and delivery of a warranty

deed.   Also, pursuant to the contract, Ferrara deposited $3000 with the Sellers’ broker as

earnest money. The contract further provided that the Sellers were to furnish a warranty deed

to Ferrara and that a reasonable time would be permitted for an examination of the title. With

regard to the title, the contract provided, “Should examination of the title reveal defect[s]

which can be cured, the Seller[s] hereby obligates himself (themselves) to cure same as

expeditiously as possible, and to execute and tender [a] Warranty Deed in accordance with the

terms thereof.”

¶3.     After conducting a title search, Ferrara discovered that the subject property was

previously owned by Cole R. Budd, who conveyed it via a warranty deed to Mr. and Mrs. J.W.

Strong on July 11, 1950.       The Budd-Strong conveyance was made without any reference to


                                                     2
rights of survivorship or otherwise. Therefore, Ferrara concluded that the property was jointly

owned by Mr. and Mrs. Strong as tenants in common. Mr. Strong died on December 12, 1974.




¶4.     On January 6, 2002, David Crane, Ferrara’s attorney, contacted the Sellers’ realtor and

discovered that a quitclaim deed had been filed on December 1, 2000, purportedly conveying

the subject property to the Sellers, who were two of the children of Mr. and Mrs. J. W. Strong. 1

This deed stated that the grantors were Mrs. Strong and all the heirs of Mr. Strong. Crane set

out to discover whether there had been an adjudication of heirship or whether an estate had

been opened on behalf of Mr. Strong. He wanted to determine whether those who executed the

quitclaim deed to the Sellers had been adjudicated the sole heirs of Mr. Strong. Upon review,

Crane determined that there was no record of any adjudication of the heirs of Mr. Strong, and

there was no evidence of whether or not he died intestate. Ferrara then requested an updated

title abstract on the subject property, which was not received until January 17, 2002. 2

Sometime during the week of January 17, Ferrara’s attorney sent a completed, but undated,

HUD-1 Settlement form to the Sellers’ attorney.        However, according to undisputed testimony

from witnesses on both sides, there was never a date and time set for the closing. Seven days

outside the 45-day period initially provided for pursuant to the contract, on January 25,

Ferrara’s attorney (Crane) contacted the Sellers’ realtor       (Curtis Harrison) and requested an



        1
          The conveyance of the subject property from Mrs. Strong and the purported heirs
of Mr. Strong showed all their signatures in November 2000.
        2
          January 17, 2002, was significant inasmuch as it was one day before the 45-day
period in which the closing was to occur. Pursuant to the contract, the closing was to take
place on or before January 18, 2002.

                                                   3
additional three (3) weeks to close. The Sellers denied this request, and their real estate agent

so advised Ferrara’s attorney by letter on January 26, 2002.

¶5.     As soon as Crane had learned of the quitclaim deed from Strong’s heirs, he advised

Ferrara that, in his opinion, the title was in fact defective.      Crane presented Ferrara with the

options of going forward with the sale with a defective title or requiring the Sellers to cure the

defects under the contract. Ferrara directed Crane to send a letter to Harrison addressing their

concerns about the defective title.         Although the record does not contain such letter, Crane’s

January 25 letter to Harrison confirms that they had previously discussed the defects.            The

Sellers advised Ferrara, after the time to close the transaction had expired, that they were

moving forward with a subsequent closing with an unrelated buyer.            Ferrara filed the present

action seeking, inter alia, specific performance, declaratory judgment relief and damages.

Ferrara also filed a lis pendens notice which the Sellers contend prevented a subsequent sale

to the third-party buyer for the sum of $40,000. 3          The Sellers counterclaimed for the loss of

the sale of the property, out-of-pocket expenses, attorneys’ fees and punitive damages for

intentional interference with a contract.

¶6.     This matter went to trial on July 17-18, 2002.             The chancellor entered a judgment

denying Ferrara any relief in this matter and granting relief to the Sellers on the counterclaim.

The judgment provided for compensatory damages in the amount of $1,779.47 and attorneys’

fees in the amount of $5,579.50. The final judgment was entered on November 14, 2002.




        3
          The contract price of $40,000 with the third-party was approximately $2,500 more
than the contract price under the Sellers’ contract with Ferrara.

                                                      4
¶7.     On December 4, 2002, some twenty (20) days after entry of judgment, the Sellers filed

two motions. The first motion was for an evidentiary hearing pursuant to Miss. Code Ann. §

11-1-65(1)(c) in order for the chancellor to determine whether punitive damages were

recoverable.   The second motion sought relief from the judgment pursuant to Rule 60 of the

Mississippi Rules of Civil Procedure, alleging that the chancellor had misapplied the law as

set forth in § 11-1-65(1)(c).    On September 12, 2003, some ten (10) months after the initial

judgment, the chancellor entered an additional judgment, specifying the percentage of interest

and awarding the Sellers punitive damages. The chancellor calculated interest on the $40,000

sale with the third-party buyer for 30 months at 8% or $8,000. The court then combined that

number with the $1,779.49 compensatory damages award and the $5,579.50 attorneys’ fees

award, both of which had been awarded in the first judgment.              Thus, the total      award for

compensatory damages, attorneys’ fees and interest was set at $15,358.99.              The court then

entered a punitive damages award in the amount of $30,000.               Ferrara timely appealed and

asserted multiple assignments of error which have been consolidated for efficiency.

                                            DISCUSSION

        Standard of Review

¶8.     Our standard of review regarding determinations of a chancellor is well-established.

        This Court will reverse a chancellor only where he is manifestly wrong. Hans
        v. Hans, 482 So.2d 1117, 1119 (Miss. 1986); Duane v. Saltaformaggio, 455
        So.2d 753, 757 (Miss. 1984). A chancellor’s findings will not be disturbed
        unless he was manifestly wrong, clearly erroneous or an erroneous legal
        standard was applied. Tinnin v. First United Bank of Miss., 570 So.2d 1193,
        1194 (Miss. 1990); Bell v. Parker, 563 So.2d 594, 596-97 (Miss. 1990).
        Where there is substantial evidence to support his findings, this Court is without
        the authority to disturb his conclusions, although it might have found otherwise
        as an original matter. In re Estate of Harris, 539 So.2d 1040, 1043 (Miss.


                                                   5
         1989). Additionally, where the chancellor has made no specific findings, we
         will proceed on the assumption that he resolved all such fact issues in favor of
         the appellee. Newsom v. Newsom, 557 So.2d 511, 514 (Miss. 1990). The
         chancellor’s decision must be upheld unless it is found to be contrary to the
         weight of the evidence or if it is manifestly wrong. O.J. Stanton & Co. v. Miss.
         State Highway. Comm’n., 370 So.2d 909, 911 (Miss. 1979).

In re Savell, 876 So.2d 308, 312 (Miss. 2004); In re Johnson, 735 So.2d 231, 236 (Miss.

1999).        See also Williams v. Williams, 843 So.2d 720, 722 (Miss. 2003); Cox v. F-S

Prestress, Inc., 797 So.2d 839, 843 (Miss. 2003); Holloman v. Holloman, 691 So.2d 897,

898 (Miss. 1996). However, the chancery court’s interpretation and application of the law is

reviewed de novo.       Weissinger v. Simpson, 861 So.2d 984, 987 (Miss. 2003); Tucker v.

Prisock, 791 So.2d 190, 192 (Miss. 2001); In re Carney, 758 So.2d 1017, 1019 (Miss.

2000).

         I.       Whether the Chancellor erred in refusing to require Sellers to
                  correct defects in the title to the property and convey same.

¶9.      Ferrara contends that the chancellor was manifestly wrong in failing to require the

Sellers to correct the defect in the title to the property and convey the property   pursuant to

the terms of their contract.   The standard of review for questions concerning the construction

of a contract are questions of law that are committed to the court rather than to the fact-finder.

Warwick v. Gautier Utility Dist., 738 So.2d 212, 215 (Miss. 1999); Miss. State Highway

Comm’n v. Patterson Enters., Ltd., 627 So.2d 261, 263 (Miss. 1993). Because Ferrara calls

into question the chancellor’s ruling with regard to the rights of the parties under their

December 4, 2001 contract, we will review the chancellor’s ruling de novo.




                                                  6
¶10.    Ferrara advances one basic argument under this assignment of error. He argues that the

real estate contract in question provided, in pertinent part that:

        TITLE: The Seller[s] [are] to furnish [a] warranty deed. Reasonable time shall
        be allowed for the examination of title. Should examination of title reveal
        defects which can be cured, the Seller[s] hereby obligate (themselves) to cure
        same as expeditiously as possible, and to execute and tender a warranty deed in
        accordance with the terms thereof.

To this end, Ferrara argues that this covenant obligated the Sellers to provide good and

merchantable title.

¶11.    The Sellers did not dispute that Mr. Strong, their father, died some years prior to the

contract date, and in regard to his death, neither an estate was opened nor was there an

adjudication to establish heirship. However, they contend that the quitclaim deed was executed

to the Sellers and was signed by all the heirs of Mr. Strong as well as his wife, Mrs. Strong,

which is sufficient proof of title. Ferrara contends that there was simply nothing of record to

establish the heirship of Mr. Strong to determine who his lawful heirs were and to finally

adjudicate that there were no outstanding, unknown or pretermitted heirs who might claim

under his estate.     Accordingly, Ferrara maintains that the Sellers breached their agreement to

provide good and merchantable title by failing to take               some action to establish the heirship.

To the extent that they failed to provide such title, Ferrara argues that the Sellers materially

breached the contract.          Therefore, on the advice of counsel, Ferrara sought specific

performance and declaratory judgment relief in order to protect his rights under the contract.




¶12.    The chancellor ruled that Ferrara was not entitled to specific performance because

Ferrara’s request for three additional weeks after the January 25, 2002, deadline constituted


                                                      7
bad faith.   Further, the order provides, “The request was refused by the [Sellers] and they

declared the contract to be void by reason of [Ferrara]’s failure to comply with the terms of

the contract, which the court finds was their right to do.”

         Contract Language and Interpretation

¶13.     Our law requires this Court to accept the plain meaning of a contract as the intent of the

parties where no ambiguity exists. Ass’n of Trial Lawyers Assur. v. Tsai, 879 So.2d 1024,

1029 (Miss. 2004); State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 797

So.2d 981, 986 (Miss. 2001); I. P. Timberlands Operating Co. v. Denmiss Corp., 726 So.2d

96, 108 (Miss. 1998); Phillips Petroleum Co. v. Stack, 231 So.2d 475, 482 (Miss. 1969).

Furthermore, “[c]ontracts are solemn obligations and this Court is obligated to given them

effect as written.” I. P. Timberlands Operating Co., 726 So.2d at 108.              In reviewing the

relevant portion of the contract, it is abundantly clear that the Sellers were duty bound to

render unto Ferrara a warranty deed.          Anything less than that effectively resulted in Ferrara

receiving less than what he bargained for under the terms of their agreement. Where the terms

of a contract are without ambiguity, as in the instant case, the plain meaning of the terms

speaks to the intent of the parties. Thus, we conclude that Ferrara intended to receive from the

Sellers a warranty deed in exchange for adequate consideration, and upon detection of defects

in title, Ferrara expected the Sellers to cure the defects       within a reasonable period of time.

Moreover, Ferrara in fact required a warranty deed because of the likelihood that financing or

bonding of the anticipated multi-million dollar project could be impeded due to a defect in

title.   Proceeding with such a major project without a warranty deed would have been

imprudent.

                                                     8
¶14.      Ferrara argues that without an adjudication of heirship for Mr. J.W. Strong, there is no

way to determine who his lawful heirs were.            Hence, without an adjudication of heirship,

Ferrara faced uncertainty as to the encumbrances of the realty.

¶15.      In 1950 Cole R. Budd conveyed the subject property to Mr. and Mrs. J.W. Strong. We

note that there was no indication from the deed as to what kind of estate was created, i.e., a

tenancy by the entirety, joint tenancy or a tenancy in common.       Further, the deed was without

any reference to rights of survivorship or otherwise.       To this end, we have held that in the

absence of any survivorship provision, a joint tenancy will not be presumed. In re Baker, 760

So.2d 759, 762 (Miss. 2000) (citing In re Isaacson, 508 So.2d 1131, 1134 (Miss. 1987)).

Therefore, we must conclude that the 1950 conveyance from Budd to Mr. and Mrs. J.W. Strong

effectively created a tenancy in common with both husband and wife maintaining a one-half

undivided interest in the realty. Further, as tenants in common, when Mr. Strong died intestate,

his one-half undivided interest vested in his heirs at law, and Mrs. Strong maintained a one-half

undivided interest plus whatever fractional interest she may have received as an heir of Mr.

Strong.

¶16.      At the time the contract between Ferrara and the Sellers was executed, Mrs. Strong was

alive. Though she has subsequently died, Mrs. Strong’s interest in the property at the time of

her death was effectively vested in the Sellers via the quitclaim deed.      Therefore, the title of

the subject property is currently vested in the Sellers, subject to possible claims brought by

any heirs at law of Mr. Strong who might have failed to convey their interests to the Sellers.




                                                   9
¶17.    We have held that a contract to sell and convey real estate ordinarily requires a

conveyance of the fee simple title which is free and clear of all liens and encumbrances, unless

restricted by other provisions of the contract. Jones v. Hickson, 204 Miss. 373, 395, 37 So.2d

625, 629 (1948); Union & Planters Bank & Trust Co. v. Corley, 161 Miss. 281, 133 So. 232

(1931). A break in the chain of title renders the title to the realty unmarketable. K.F. Boackle,

Mississippi Real Estate Contracts and Closings § 3-45, at 82 (2d ed. 2000).

¶18.    Beyond this general proposition, where a contract expressly provides that a seller

render unto the buyer a warranty deed, nothing less can be given in satisfaction of the seller’s

contractual obligation.     When the seller agrees to convey property by warranty deed, he

warrants that the title conveyed is without defect, i.e., clear and marketable.                   “The word

‘warrant’ without restrictive words in a conveyance shall have the effect of embracing all five

covenants known to the common law, to wit: seizin, power to sell, freedom from

encumbrances, quiet enjoyment and warranty of title.”            Miss. Code Ann. § 89-1-33 (1999).

Because the contract here action obligated the Sellers to render a warranty deed, they

possessed an affirmative duty to render to Ferrara a fee simple title which was clear and

marketable.     Further, where a contract expressly provides a reasonable opportunity for the

seller to cure discovered defects in title, the seller’s failure to cure constitutes a material

breach of the contract. Inasmuch as the Sellers failed to seek an adjudication of the heirship 4




        4
           Under Mississippi law, there are two recognized ways of finally adjudicating the
rightful heirship to property. One is to open an estate, and the other is to file a petition to
establish heirship. See Miss. Code Ann. §§ 91-1-27 & 91-7-63 (Rev. 2004).

                                                     10
of Mr. J.W. Strong and failed to reasonably cure the defect in title, the Sellers breached their

contract with Ferrara.

         Covenant of Good Faith and Fair Dealing

¶19.     All contracts carry an inherent covenant of good faith and fair dealing. Cenac v. Murry,

609 So.2d 1257, 1272 (Miss. 1992).         “Good faith is the faithfulness of an agreed purpose

between two parties, a purpose which is consistent with justified expectations of the other

party.   The breach of good faith is bad faith characterized by some conduct which violates

standards of decency, fairness or reasonableness.” Id.       The covenant holds that “neither party

will do anything which injures the right of the other to receive the benefits of the agreement.”

Cothern v. Vickers, 759 So.2d 1241, 1248 (Miss. 2000). The covenant imposes a duty not

to prevent or hinder the other party’s performance, but may also impose a duty “to take some

affirmative steps to cooperate in achieving these goals.” Cenac, 609 So.2d at 1272.

¶20.     The Sellers’ failure to cure the defect in title within a reasonable time period amounts

to a breach of the covenant of good faith and fair dealings.          Inasmuch as it was Ferrara’s

justified expectation to receive a warranty deed that was clear and free of title defects, the

Sellers failed to meet those expectations. When the Sellers were notified of the problem, they

were duty bound to take affirmative steps to cure the defect in an effort to allow both parties

to receive their bargain under the contract. That they were not notified by their realtor of the

problems with the title prior to the date of closing is of no moment here. By failing to correct

the defect, the Sellers not only denied themselves of receiving that which they agreed to

receive, but they also denied Ferrara of receiving a warranty deed to the subject property. The

Sellers completely ignored their obligations under the contract with Ferrara and then pursued

                                                 11
a more lucrative deal with a third party.       When parties to a contract make mutual promises

(barring some defense or condition which excuses performance), they are entitled to the

benefit    of their   bargain.       The Sellers’ conduct violated standards of fairness and

reasonableness. As a result, we see no reason why Ferrara should be denied the benefit of his

bargain.

¶21.      Considering these      propositions, we hold that plain meaning of the contract clearly

represented the intent of the parties.        Thus, the chancellor committed reversible error by

failing to enforce the relevant portions of the contract. This determination necessarily brings

us to the second dispute presented in this appeal: the time for closing and whether under the

contract, time was of the essence.

          II.    Whether the Chancellor erred in ruling that time was of the
                 essence and that closing had to be achieved within the time
                 prescribed for in the contract.

¶22.      Ferrara argues that the chancellor committed reversible error in finding that under the

sales contract, the time for performance was of the essence. The chancellor ruled:

          Both Ray Stronsky, the real estate agent for [Ferrara] and Curtis Harrison, the
          real estate agent for the [Sellers], testified that they discussed the fact that the
          [Sellers] had priced the house for a “quick sale” in order to generate money to
          pay the health care costs of the [Sellers’] mother.

                                           ..............

          There are two findings of fact that are central to the court’s analysis of this
          contract. There is no doubt it was clear to everyone involved that time was of
          the essence to the Sellers. The reason for the “quick sale,” was because of the
          financial hardship resulting from the [Sellers]’ mother’s care. There is no
          ambiguity in paragraph 6 of the written agreement prepared by [Ferrara]’s agent.
          The closing date was to be 45 days after acceptance by the Sellers.




                                                  12
The chancellor ruled that because time was of the essence, Ferrara’s failure to close

constituted a material breach, excusing performance by the Sellers.            Ferrara challenged the

chancellor’s ruling by arguing, correctly, that the sales contract did not contain a provision

which states that time is of the essence, and in the absence of such, time is not ordinarily

regarded as of the essence.

¶23.    We address two relevant equitable principles regarding the performance duties and

obligations under the contract.

        Time of the Essence Provisions

¶24.    “Unless a contract expressly states so, or unless there is otherwise shown to be a clear

indication of intent, time is not ordinarily considered to be of the essence in the performance

of a contract. Gault v. Branton, 222 Miss. 111, 75 So.2d 439, 445 (1954); Lee v. Schneider,

822 So.2d 311, 314 (Miss. Ct. App. 2002). We note that in order for equity to regard contracts

as “of the essence,” one of two conditions must be satisfied.               In the absence of either

condition, time will not ordinarily be considered of the essence in contract performance.

¶25.         First, the contract must expressly state that time is of the essence. We acknowledge

that the contract here on its face does not declare time to be of the essence as far as the

scheduled closing date. To this end, we are called upon to consider the second condition. The

second way for equity to regard timely contract performance as of the essence is there must

be a clear indication of intent by the parties to the same. In his findings of fact, the chancellor

stated that “there is no doubt it was clear to everyone involved that time was of the essence of

the Sellers.” However, the record reveals that during cross-examination of the Sellers’ realtor,

the specific question was asked, “[Do] you understand that you can put time is of the essence


                                                   13
on the contract?” The Sellers’ realtor responded affirmatively. The realtor was asked, “Now,

in this contract, you did not request the terms that time is of the essence?”          The realtor

responded negatively. The Court engaged in its own questioning of the Sellers and determined

that the only individual aware of their desire to have a “quick sale” was Curtis Harrison, their

real estate agent.

¶26.    In Lee v. Schneider, the Court of Appeals dealt with a factually similar case. In Lee,

a real estate contract set the closing to occur on or before June 30, 1994. Id. at 313. The

sellers considered the contract to be voided or to be terminated for failure to perform within

the time prescribed.     Id.   The purchaser instituted an action for specific performance in the

Chancery Court of Pearl River County. Id. The trial court determined that the contract on its

face did not provide time to be of the essence as far as the scheduled closing date was

concerned. Id.       Having so determined, the trial court ruled that the purchaser was entitled to

specific performance if the defects could be worked out within a reasonable time and so

ordered. Id. at 313-14. The seller appealed the ruling, and the Court of Appeals followed the

reasoning of this Court in Gault and stated, “Unless the contract expressly so states, or unless

there is otherwise shown to be a clear indication of intent, time is ordinarily not considered

to be of the essence in the performance of a contract.” Id.

¶27.    Here, there is no clear indication (regarding time of performance) between the parties

supported by the record. Indeed, the Sellers’ realtor, Curtis Harrison, was the sole source of

communication with Ferrara’s realtor that he (Curtis Harrison) did not know why the closing

date was set when it was and he was not advised of any exigency in the sale which was out of



                                                   14
the ordinary.     During trial, Curtis Harrison testified that while he did not remember exactly

why the Sellers wanted to close the property within 45 days, he did know that they insisted that

he negotiate downward Ferrara’s initial request for 60 days in which to close.           Obviously, if

the Sellers did not tell their realtor why time was of the essence, he could not have imparted

any such information to Ferrara. It is undisputed that at no time was the point made to Ferrara

or his agent that time was of the essence under this contract. A complete review of the record

reveals that there was no clear indication as to the parties’ intent to make time of the essence.

To this end, we hold that the trial court was manifestly wrong to conclude otherwise.

¶28.    We hold that in order for the trial court to determine the existence of a clear indication

of the parties’ intent with regard to time being of the essence, the trial court must consider all

relevant circumstances surrounding the transaction.         Because the contract in the instant action

(i) did not contain a provision expressly stating that time to be of the essence, nor

(ii) can a clear indication of the parties’ intent be ascertained from the relevant circumstances,

we hold that time was not of the essence.

        Material Breach

¶29.    The trial court ruled that because Ferrara failed to close, the Sellers were excused from

performance under the contract.          Because terminating a contract is viewed as an extreme

remedy and should be granted sparingly, termination of the contract is not proper absent a

material breach. UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc., 525 So.2d 746, 756

(Miss. 1987). A breach is material where there is “a failure to perform a substantial part of the

contract or one or more of its essential terms or conditions, or if there is such a breach as

substantially defeats [the purpose of the contract].” Gulf South Capital Corp. v. Brown, 183


                                                    15
So.2d 802, 805 (Miss. 1966); McCoy v. Gibson, 863 So.2d 978, 980 (Miss. Ct. App. 2003).




¶30.    In light of the present circumstances, we hold that Ferrara’s refusal to close on January

18, 2002, occurred only because of the defect in title which was not properly cured by the

Sellers. To this end, we hold that the trial court erred in ruling that Ferrara’s refusal to close

constituted a material breach, relieving the Sellers of further performance.   Inasmuch as time

was not of the essence, the onus was on the Sellers to correct the defects in title and to render

to Ferrara that which he bargained for under the contract, a warranty deed. With Miss. Code

Ann. § 89-1-33 as guidance, the warranty deed which Ferrara sought, absent other restrictive

language, would have the effect of embracing all five covenants known to the common law, to

wit: seizin, power to sell, freedom from encumbrances, quiet enjoyment and warranty of title.

Absent other lawful reasons why the contract should not be enforced, we conclude that the

parties are bound to perform pursuant to the terms of their agreement.

¶31.    In light of the errors outlined above, we need not reach the remaining issues raised by

Ferrara.   Because the contact between the Sellers and Ferrara should have been enforced

according to its unambiguous terms, we hold that the judgment rendered in favor of the Sellers

is completely erroneous for the reasons set forth supra.

                                            CONCLUSION

¶32.    For the foregoing reasons, we reverse the judgments of the Chancery Court of Harrison

County and remand this case with directions that the chancellor enter an appropriate judgment

finally dismissing the Sellers’ counterclaim with prejudice and requiring the Sellers to

specifically perform under the contract.


                                                   16
¶33.   REVERSED AND REMANDED.

    SMITH, C.J., WALLER AND COBB P.JJ., EASLEY, CARLSON AND
RANDOLPH, JJ., CONCUR. DIAZ AND DICKINSON, JJ., NOT PARTICIPATING.




                                17
