Ates v. Ates
| Decision Date | 27 May 1940 |
| Docket Number | 34149 |
| Citation | 196 So. 243,189 Miss. 226 |
| Court | Mississippi Supreme Court |
| Parties | ATES et al. v. ATES |
Suggestion Of Error Overruled September 4, 1940.
APPEAL from the chancery court of Smith county, HON. BEN STEVENS Chancellor.
Suit by L. C. Ates against W. N. Ates and others to have the title to a tract of land canceled as against the defendants. Decree for complainant, and defendants appeal. Reversed and bill dismissed.
Reversed and decree here for appellant.
Heidelberg & Roberts, of Hattiesburg, for appellants.
The instrument in writing dated September 9, 1921 and executed by W. N. Ates and Mrs. W. N. Ates wherein L. C. Ates is identified as beneficiary is testamentary in character, and neither a will nor a deed, and is void and ineffectual.
A deed to be valid must take effect as a conveyance in praesenti though the enjoyment of the estate may be postponed, and an instrument which cannot operate in the life of the maker is not a deed.
Williams v. Green, 91 So. 39, 128 Miss. 446; Simpson v McGee, 73 So. 55, 112 Miss. 344; Cox v. Reed, 74 So. 330, 113 Miss. 488; Kelly v. Covington, 81 So. 485, 119 Miss. 658; Knight v. Knight, 133 Miss. 74, 97 So. 481; Tapley v. McManus, 168 So. 51, 175 Miss. 849; Wallace v. Wallace, 75 So. 449, 114 Miss. 591.
Complainant has not alleged facts showing that he has acquired title by adverse possession. His possession is not exclusive.
McCaughn v. Young, 85 Miss. 277; 2 C. J. 120, Sec. 199.
The decree as entered herein is contrary to the law and facts and should be set aside and for naught held and judgment or decree entered here for the appellants.
R. C. Russell, of Magee, and Homer Currie, of Raleigh, for appellee.
The courts have uniformly held, without a single exception, that an instrument conveying property to take effect at grantor's death without conveying any interest in praesenti, is a will, but on the other hand, if the instrument or deed does convey any present interest, that it is a deed of conveyance, and it is our contention that when the instrument in question is measured by this rule of law that the court will be compelled to uphold the chancellor's decision that the instrument in question is a deed, and conveyed to appellee a present, substantial and definite interest in said land.
Wall v. Wall, 30 Miss. 91; Exum et al. v. Canty et al., 34 Miss. 533; Sartor v. Sartor, 39 Miss. 760; Cox v. Reed, 113 Miss. 488, 74 So. 330; Myers et al. v. Viverett, 70 So. 449; Stubblefield v. Haywood, 86 So. 295; Knight et al. v. Knight, 97 So. 481; Johnson v. Seely et al., 103 So. 499; Sec. 2110, Code 1930.
Appellee's adverse possession which he set up in September 9, 1921 was open, exclusive, notorious and adverse for a period of more than 10 years against all the world with the exception of the permissive right of W. N. Ates and wife and two single daughters, and while appellee could not have acquired such adverse possession against these parties under the terms of the deed, yet he could and probably did acquire a title by adverse possession against the said Oscar A. Ates, who openly, from September 9, 1921 until January 25, 1934, acquiesced in appellee's title to said land.
Appellee, L. C. Ates, filed a bill in the chancery court against his father, mother, sister and brother, W. N., Beulah, Oscar and Mrs. Minnie Ates, guardian, in which he sought to have the title to a tract of land cancelled as against his father, W. N. Ates, and the other relatives mentioned.
The strength of his case rests upon the validity of an instrument which was executed by W. N. Ates, his father, and Beulah Ates.
The instrument upon which the appellee's case rests and upon which he must stand or fall is as follows:
Several demurrers to amended bills were overruled, and that is one of the main assignments of error here.
By the demurrers, this question was raised--Is the instrument in question a deed or a will? Or, to put it more forcibly, is the instrument a deed or is it testamentary in character?
This language in the instrument determines the decision of the case: "It is provided herein and made a part hereof that this deed is not to take effect until the death of W. N. Ates one of the grantors except that the grantee is to...
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