Allison v. Allison

• Decision Date: 26 January 1948
• Docket Number: 36649.
• Citation: 33 So.2d 619,203 Miss. 20
• Court: Mississippi Supreme Court
• Parties: ALLISON v. ALLISON.

33 So.2d 619

203 Miss. 20

ALLISON v. ALLISON.

No. 36649.

Supreme Court of Mississippi

January 26, 1948

Cowles Horton, of Grenada, for appellants.

Stone & Stone, of Coffeeville, for appellee.

L. A SMITH, SR., Justice.

Appellee and her husband, A. A. Allison, had lived together many years on a plantation in Grenada County, which he had bought and for which he had paid, but which he subsequently conveyed to his wife, as one of the sons put it, 'for protection'. The deed recited that the consideration was 'love and affection'. That was on April 3, 1920, and life continued as theretofore on the plantation. According to the testimony of Mrs. Allison, 'He always runs the place just like I run the house business.' Two other small tracts were bought and put in her name, adjoining the old home place. There was evidence that in the family it was all considered the joint property of the father and mother, in spite of the record title in the mother alone.

On September 2, 1946, Mr. and Mrs. Allison and Mr. and Mrs. W W. Odom executed a joint agreement, carrying $500 as consideration and earnest money, that the Allisons would convey this real estate to the Odoms, provided that the balance of the purchase price was paid or tendered before January 1, 1947. This option also embraced all investock and farm tools of every kind or nature. The personal property belonged solely to Mr. Allison. The deed to the Odoms was signed and delivered on September 11, 1946, as a 'walkout' proposition,--land, stock and farm equipments. A check for $6,300 was delivered, payable to Mr. and Mrs. Allison, which the maker, Mr. Odom, testified 'was a cash payment on the same land that the deed of trust and note was given for a balance of the purchase price.' This check was also dated September 11, 1946, and on the same date the Odoms signed and delivered a note to the Allisons jointly in the amount of $5,500. The trust deed from the Odoms was to the same lands and was to secure the payment of this note. The trust deed also included the stock and crops.

This case is a companion to the one decided by us January 12, 1948, styled Allison

v. Allison et al., Miss., 33 So.2d 289, and not yet [reported in State reports].

The trust deed was put on record, the check was endorsed and cashed, and the trust deed and note were later found, with other business papers of Mr. Allison, in a cigar box in a chifforobe in the bedroom of the home of Mr. and Mrs. Allison,--one daughter testifying that whenever he would turn over any paper to his wife, 'she would put it away for him.'

Mr. Allison could not write his name, and his wife was accustomed to doing so for him, as she could read and write. She denied, however, that she endorsed the check, stating that she knew nothing about it, or the note or the trust deed, as to how or to whom payable, until after the death of Mr. Allison during the latter part of September 1946. There was no proof to show who else could have endorsed, or did endorse, the check. Upon the death of the father, the two sons of the Allisons' were thereupon appointed administrators of their deceased father's estate, and upon advice of their attorney, these papers were turned over to the fiduciaries, the active one of whom was L. L. Allison, appellee here. Mrs. Allison waived her widow's right to administer and joined in the application for letters of administration to be issued her sons.

The attorney employed in the drafting of the real estate papers and the note, and securing the grant of letters, was a careful, capable, honorable member of the Grenada Bar, respected and esteemed, and now deceased.

As stated above, the note was payable to Mr. and Mrs. Allison jointly, and some time after her husband's death, and after appointment of the administrators of his estate, Mrs. Allison went with her son, L. L. Allison, to an official of a local bank in Grenada and borrowed money on her part of the note, which she has repaid.

Later, she filed the other suit mentioned, supra, and this suit. In the suit at bar, she averred that making the note payable jointly to her and Mr. Allison was a mistake, suggesting in the original bill that the writter 'was very probably led into the mistake in making A. A. Allison a joint payee of the said note by the fact the real necessity for Mr. A. A. Allison's signing the deed was on account of the fact that the land conveyed included the homestead of Mrs. Allison and her husband.' This, obviously, is conjecture. In other words, by her suit and evidence, Mrs. Allison sought to establish that the note was so drawn due to a mistake of the attorney, there being no allegation of any mutual mistake of the parties. Since there was no proof of any mistake by anyone, the chancellor correctly so found and declared in his opinion dictated into the record.

The prayer of the bill was 'that a judgment be given in favor of the petitioner declaring the petitioner to be the sole beneficiary of the note in controversy and that the note be turned over to her, or the proceeds be turned over to her, as the true owner,' and for general relief. Administrator L L. Allison answered with categorical denials, and averments setting forth the circumstances of the case from his standpoint as administrator of his father's estate, and claiming there was no mistake, and that one-half of the note belonged to the estate of the deceased...