Allgood v. Allgood, 55535

• Decision Date: 17 July 1985
• Docket Number: No. 55535,55535
• Citation: 473 So.2d 416
• Parties: Aletha H. ALLGOOD v. Hershel W. ALLGOOD.
• Court: Mississippi Supreme Court

Page 416

473 So.2d 416

Aletha H. ALLGOOD v. Hershel W. ALLGOOD.

No. 55535.

Supreme Court of Mississippi.

July 17, 1985.

R.K. Houston, Bay Springs, for appellant.

William R. Ruffin, Bay Springs, for appellee.

Before WALKER, P.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court:

I.

Over title to thirteen acres of less than flourishing Jasper County timber lands and minerals of at best modest value--and no doubt other real or imagined sins of each toward the other, Aletha H. Allgood and her son Hershel W. Allgood have gone to war. The dust has settled sufficiently that we may hold, under the rules of law applicable to such cases, that Aletha holds the property subject to a constructive trust in favor of Hershel. The chancellor's decision to that substantive effect is affirmed.

II.

A.

At sometime prior to 1973 Larry Allgood had acquired by inheritance the 13-acre tract here in dispute, together with an undivided interest in certain minerals, all situated just across the road from the Antioch Church in the Second Judicial District of Jasper County. Larry determined to sell this property and in that connection he communicated with Aletha Allgood, who was the Defendant below and is the Appellant here. Aletha had lived in the vicinity of the disputed property for years. She had worked for many years as a legal secretary and had acquired a certain rudimentary knowledge regarding real estate transactions. Aletha agreed to assist Larry in selling the property and went so far as to advertise the same in a local newspaper listing her local telephone. No sale occurred.

In July of 1973, Hershel W. Allgood was living in San Luis Obispo, California. Hershel was the Plaintiff below and is the Appellee here. Hershel W. Allgood is the son of Aletha Allgood.

In 1960, Hershel had left Mississippi and moved to California. There he met and married his wife, Opal Allgood. The two had lived in California continuously up until July of 1973. At some time prior to July, 1973, Hershel and his wife decided to leave California and move back to Jasper County, Mississippi. They communicated this interest to Aletha in a telephone conversation which occurred a few weeks prior to July 11, 1973. At the time of this telephone conversation, Aletha was in Jasper County, Mississippi, and her son Hershel and his wife Opal were in California. During this telephone conversation, Hershel told his mother that he would like to purchase Larry's property in Jasper County, if she could make the necessary arrangements--Hershel being in California and not being able to come to Mississippi. According to Hershel, his mother agreed to effect this purchase for the sum of $3,500.00. The description of this three-way telephone conversation found in the brief of Aletha Allgood is as follows:

Hershel W. Allgood stated, "I called or either she called--anyway we were talking on the phone--she said the land was available for sale." "And if I wanted it for $3,500.00 she could go ahead and make the arrangements and I could get it." "I asked her if she would go ahead and take care of it, I would like to have it."

Opal Allgood testified that Aletha Allgood

"told him [Hershel] Larry had this land for sale here, which was a part of the old original Allgood property.... Hershel told her to go ahead and get the land for him and take care of it or handle it."

When asked to recall the exact words of the conversation, Opal testified,

"She, or we had called her--I'm not positive who had called who--but she told us that Larry Allgood had this land here for sale and it was part of the original Allgood land, and did we want it; and Hershel said Yes, to get it for him, you know, to make the arrangements and that's as I remember."

Aletha Allgood denied that this conversation took place.

Thereafter Aletha negotiated a $3,500.00 loan from the Newton County Bank, the proceeds to be used for the purchase of the property in question. On July 11, 1973, Larry executed two deeds in favor of Aletha. The first deed conveyed to Aletha the 13-acre tract of land in controversy here. The second deed conveyed certain mineral interests to be mentioned later. Both deeds were filed for record in the office of the Chancery Clerk of Jasper County, Mississippi, on July 16, 1973.

In the closing of the loan with the Newton County Bank, Aletha Allgood, on July 12, 1973, had executed and delivered to the bank a promissory note in the aggregate sum of $4,289.76, providing for payment of thirty-six (36) consecutive equal monthly installments of $119.16 each, commencing on September 1, 1973. On the same date, Aletha Allgood executed a deed of trust conveying the 13-acre tract of land without any reservation for minerals and delivered same to the bank as security for the aforesaid promissory note.

On July 22, 1973, Aletha mailed the two deeds and the installment note to Hershel in California. Within three or four days after receiving same, Hershel called his mother and asked why the property had been conveyed to her rather than to him. She responded that this would make it easier for her to look after the property while he was in California, an explanation which Hershel regarded as "reasonable enough". Thereafter, Hershel made each of the $119.16 monthly payments, excepting only three consecutive payments made by Aletha at a time when Hershel was out of work. Subsequently, Hershel sold timber off the 13-acre tract and from the proceeds of the timber sale repaid to his mother a sum equal to the three payments she had made to the Newton County Bank.

There was other evidence that the parties regarded the land as belonging to Hershel. On one occasion, Hershel listed the 13 acres for sale with a realtor and received the bonus money from a mineral lease, even though Aletha signed this lease because the deed was in her name. Crucial findings made by the chancellor were that Hershel W. Allgood paid all sums owing under the installment note to the Newton County Bank of July 12, 1973, paid all taxes owing with respect to the land from and after its purchase, and "exercised every right as the actual owner of said land and minerals."

Though it was discredited by the chancellor, the testimony of Aletha Allgood should be noted. In the first place, Aletha testified that she had determined to purchase the property for her own investment purposes. This she did prior to any conversations with Hershel or his wife. Aletha testified that after the purchase was made, she did discuss with Hershel the notion of letting him have the property, but only provided that Hershel would make all payments to the Newton County Bank and would also repay to her a $1,700.00 debt said to have existed for more than ten (10) years allegedly arising from Hershel's default in an old car note. Beyond that Hershel was asked to repay some $1,000.00 in miscellaneous advances made between 1974 and 1976.

The net effect of Aletha's approach to the facts was that she had purchased the land in July of 1973 for $3,500.00 and had agreed to sell it to Hershel shortly thereafter for a total consideration amounting to in excess of $6,000.00. The chancellor found that the alleged $1,700.00 indebtedness with regard to the car note never in fact existed, i.e., Aletha never made any such payment for Hershel, and, further, that the other sums said to have been advanced between 1973 and 1976 either were not advanced at all, or were gifts from Aletha to her son having no connection with the purchase of the subject property at all.

Though the 13-acre tract of land has been the focal point of this dispute, there is a related mineral deed executed July 11, 1973, conveying to Aletha Allgood an undivided one-half ( 1/2) interest in the minerals under 4.4445 acres of the 13-acre tract of land. Aletha subsequently leased these minerals and received rental income in the amount of $462.80.

Prior to 1976 there appears to have existed between Aletha and Hershel a normal mother-son relationship. Certainly, the usual trust accompanying such a relationship existed in 1973 at the time of the purchase of the Larry Allgood property. Familial tranquility rapidly dissipated in 1976 with the divorce of Aletha and Hershel's father, Wallace. The record reflects bitter litigation between Aletha and Hershel regarding Wallace's estate, see Allgood, Adm'r. v. Allgood, 367 So.2d 450 and 372 So.2d 300 (Miss.1979), as well as a contested proceeding to exhume Wallace's body. Sadly, events and time have led this mother and son to the point where they do not speak to one another.

B.

Prior to the filing of this suit Aletha held record title to the property in issue with respect to which she was out of pocket not one penny. Hershel on the other hand had paid the entire purchase price of the property and had nothing. In this context on June 30, 1983, this civil action was commenced when Hershel W. Allgood filed his complaint in the Chancery Court for the Second Judicial District of Jasper County, Mississippi, naming Aletha as principal defendant. Hershel asserted his claim to the 13-acre tract of land and the aforesaid mineral interests via various trust theories. He also asked payment to him of all income Aletha had derived from her use of the lands. In due course, Aletha answered denying the essential allegations of the complaint and asserting a counterclaim (not involved in this appeal) against Hershel for the sum of $4,306.66 for moneys allegedly loaned by her to Hershel W. Allgood, payment of which was due and owing at the time.

The matter was called for trial on its merits on October 12, 1983. All matters were hotly contested on both the facts and the law. In due course, on October 25, 1983, the chancery court released a memorandum opinion which in substance resolved all disputed fact questions in favor of Hershel

Specifically, the chancellor found:

[A] trust arose by implication of law out of the conveyances from Larry Allgood to Aletha Allgood for the...