Allison v. Burnham

• Citation: 136 Miss. 13,100 So. 518
• Decision Date: 16 June 1924
• Docket Number: 24187
• Court: United States State Supreme Court of Mississippi
• Parties: ALLISON et al. v. BURNHAM. [*]

100 So. 518

136 Miss. 13

ALLISON et al. v. BURNHAM. ^[*]

No. 24187

Supreme Court of Mississippi

June 16, 1924

Division A

1. MORTGAGES. That absolute deed was intended as mortgage may be shown by parol.

That an absolute deed was intended to operate as a mortgage may be shown by parol.

2. LIMITATION OF ACTIONS. Debtor's suit to reform deed to third party by creditor, to whom debtor had conveyed land by deed intended as mortgage, held not barred by limitations.

Where debtor conveyed land to creditor by absolute deed as security, the creditor to sell land or, if no sale was made he was to have a one-fourth interest therein, debtor's suit to reform creditor's deed to third party purporting to convey more than a one-fourth interest and for partition of land between debtor and third party was not barred by limitations because brought more than ten years after execution of deed to creditor; the right of action not having accrued until execution of deed to third party.

HON. T P. DALE, Chancellor.

APPEAL from chancery court of Simpson county, HON. T. P. DALE Chancellor.

Suit by G. M. Burnham against Mrs. Mary G. Allison and others. From decree overruling demurrer to bill, defendants appeal. Affirmed and remanded.

Judgment affirmed, and cause remanded.

Bee King and R. N. Miller, for appellants.

The bill of complaint was filed in the chancery court of Simpson county, at the November Term, 1923, against Mrs. Mary G. Allison and R. N. Miller, to enforce a trust on lands in a deed absolute on its face made by appellee Burnham in 1908--more than sixteen years ago--and to enforce what is charged in said bill to be a trust in favor of Burnham. Appellants filed a demurrer to this bill setting up statute of frauds and statute of limitations.

1. The bill charges an express trust not in writing.

2. The bill makes no charge that Miller acquired title to the lands by any sort of undue influence or fraud.

The statute was intended to protect a vendee from claims like this. An express trust in land, not in writing, is void absolutely. There is no implied trust charged in the bill. It is charged that the conveyance was made to Miller with an oral understanding or agreement that he, Miller, was to sell the lands, pay himself the fee and give the balance to Burnham.

If Burnham had anything coming to him out of the sale he is certainly guilty of laches in not demanding it of Miller. He does not deny that he knew all about the sale to Mrs. Allison when it was made, and he does not charge Miller was insolvent.

The honorable chancellor treated the case as if a charge of fraud or some sort of overreaching of Burnham by Miller had been made in the bill, and no single authority to sustain him, cited in his opinion, it is respectfully submitted, is applicable to the case. He quotes from 6 C. J. 689, et seq., stating the rule where fraud or undue influence is charged.

But in order to avoid such transaction you must charge the attorney with fraud or undue influence or some other betrayal of trust. Read 6 C. J., article 211, beginning at page 686 and notes; Moore v. Crump, 84 Miss. 620; Clearman v. Cotton, 66 Miss. 467; Kirling v. Shaa, 33 Cal. 425, 91 Am. Dec. 644; Miazza v. Yerger, 53 Miss. 135.

On the question of limitations, Miller, according to the bill, sold the lands in 1915, and any claim of Burnham on him for the proceeds is barred by limitations.

On the question of his claim Burnham must have proceeded within a reasonable time. He could not stand by and see Mrs. Allison pay her money eight years ago and make no objection without losing his right to hold her as trustee. See 6 C. J., par. 214, and notes.

By reason of the statute, section 3124 of Hemingway's Code, this case ought to be reversed promptly, demurrer sustained and the bill dismissed.

J. P. & A. M. Edwards, for appellee.

The demurrer, of course, admits each and every allegation of the bill. It is therefore admitted that she intended to buy and did buy only the interest of Miller in the land and that Miller intended to convey to her nothing more than such interest, etc., and in fact this was all that was conveyed by his deed to her regardless of the language used therein. She does not claim to be an innocent purchaser nor could she so claim, etc., yet it is contended by her counsel that under these circumstances she acquired a fee-simple title to the entire tract both as to Miller and Burnham, the mortgagor or cotenant with Miller, and this he contends is by virtue of the statute of limitations or by section 3124 of Hemingway's Code.

As to the defense invoked by the statute of limitations, we insist that this cannot be raised by demurrer, but by special plea only. W. T. Raleigh Company v. Fortenberry, 97 So. 722. No cause of action arose in favor of the appellee Burnham against Miller or any one else till June 21, 1915, the date of the so-called sale of the land by Miller to Mrs. Allison and which is within ten years of the date of the filing of the bill, being only about eight years from the date of the deed from Miller to Mrs. Allison.

It is urged that no fraud was charged in the bill against Miller but as held by the learned chancellor the relation of attorney and client is alleged throughout the bill, and this shows that relation from which fraud may be inferred, or at least is sufficient allegation to warrant the admission of...