Allen v. Smith, 42832

• Decision Date: 16 December 1963
• Docket Number: No. 42832,42832
• Citation: 248 Miss. 340,158 So.2d 750
• Parties: Mrs. Ruth Bond ALLEN v. Mrs. Annie Ruth SMITH et al.
• Court: Mississippi Supreme Court

Page 750

158 So.2d 750

248 Miss. 340

Mrs. Ruth Bond ALLEN v. Mrs. Annie Ruth SMITH et al.

No. 42832.

Supreme Court of Mississippi.

Dec. 16, 1963.

Jones & Stratton, Brookhaven, for appellant.

Cohn, Hobbs & Hobbs, Brookhaven, for appellee.

GILLESPIE, Justice.

Mrs. Ruth Bond Allen, appellant here, filed suit against the administrator of the estate of her former husband and his heirs at law for partition sale of an automobile. The chancellor dismissed the bill of complaint and Mrs. Allen appealed.

Appellant was divorced from Lloyd Allen prior to September 3, 1959. They had planned to remarry. On September 3, 1959, appellant and Lloyd Allen purchased a 1959 Ford Galaxie automobile and had the title vested in 'Mr. and Mrs. Lloyd Allen.' Lloyd Allen traded in an old car which he owned and was allowed a credit on the purchase price of the new car of $506.85. Appellant traded in her old car and was allowed a credit on the purchase price of the new car of $295.86. The balance of the purchase price was financed through a conditional sales contract signed by Lloyd Allen and Mrs. Lloyd Allen as purchasers.

Lloyd Allen and appellant were remarried two days after the purchase of the new automobile on September 5, 1959. Appellant filed suit against Lloyd Allen for a divorce and in February 1962 a decree was entered granting her a divorce. The record does not show who made the payments on the automobile from the time it was purchased until October 17, 1961, but after said date the payments were made by Lloyd Allen. At some date not disclosed by the record, the unpaid balance on the Ford Galaxie automobile was refinanced and in connection with the refinancing a credit life insurance policy was issued on the life of Lloyd Allen and he paid the premium thereon in the amount of $127.80. When Lloyd Allen died the balance due on the purchase price of the 1959 Ford automobile was paid from the proceeds of the credit life insurance.

There is no proof that appellant was divested of her undivided one-half interest in the automobile. The parties were divorced on February 13, 1962, and neither the bill of complaint nor the decree made any reference to alimony or property of any kind.

Lloyd Allen died March 11, 1962, leaving as his heirs at law the persons named as defendants in the original bill.

The chancellor rendered an opinion and held (1) that since appellant and Lloyd Allen were not man and wife at the time the automobile was purchased on September 3, 1959, there was no Mrs. Lloyd Allen in existence and her name on the bill of sale was a nullity; (2) that since appellant made on claim to the automobile in the divorce proceedings she is estopped now to claim any interest therein, and (3) that appellant's interest in the automobile could not be more than $295.86, and that since she had the partial use of the automobile after it was purchased, the usage for the period of time the parties lived together was sufficient to extinguish her right.

The first question is whether the bill of sale to the automobile purchased on September 3, 1959, vested in appellant a one-half interest in the automobile. We hold it did. The chancellor was in...