Beasley v. Beasley

• Decision Date: 04 January 1937
• Docket Number: 32405
• Court: Mississippi Supreme Court
• Parties: BEASLEY et al. v. BEASLEY

171 So. 680

177 Miss. 522

BEASLEY et al. v. BEASLEY

No. 32405

Supreme Court of Mississippi

January 4, 1937

Division B

1 DEEDS.

Description in deed of land as "South part of Northwest 1/4, Section 18, Township 16, Range 4, containing 42 acres," held not void for uncertainty, since description was, capable of location by surveyor, who could lay off forty-two acres so as to constitute southern portion of described subdivision.

2 DEEDS.

Description in deed of land as "16 acres North end of Southwest 1/4, Section 18, Township 16, Range 4," held not void for uncertainty, since description of north end of land was capable of location by surveyor.

3. DEEDS.

Description in deed of land as "Northeast 1/4 fractional less 10 acres Section 13, Township 16, Range 3, containing 120 acres," held not void for uncertainty, notwithstanding invalidity of expression "less 10 acres."

4. DEEDS.

Description in deed of land as "North 1/4 of Southeast 1/4 Section 13, Township 16, Range 3, containing 32 acres," held not void for uncertainty, notwithstanding that statement "32 acres" purported to be statement of acreage contained, without stating its location, since government description was sufficient and not ambiguous.

5. DEEDS.

Language in deed, giving boundary of land on all sides and describing land and giving its name as generally known as the "I. P. Beasley Old Home Place," held sufficient description to convey such lands.

6. DEEDS.

Placing of deeds in bank beyond grantor's control for delivery to grantees after grantor's death was valid escrow.

7. DEEDS.

Grantor's directions to third person, whom she directed to place deeds in bank for safekeeping until her death, when they were to be delivered to grantees, and not third person's belief as to what grantor could do, were determinative of whether there was valid delivery of deeds in escrow.

8. WILLS.

Deed to personal property which was to be effective only at grantor's death held invalid in absence of proof of delivery to grantees, or to third person for delivery to grantees on grantor's death.

HON. JAS. A. FINLEY, Chancellor.

APPEAL from chancery court of Clay county HON. JAS. A. FINLEY, Chancellor.

Bill by Rufus F. Beasley against Elmer G. Beasley and another. From the decree, the defendants appeal. Affirmed in part, and reversed in part.

Affirmed in part, and reversed in part.

B. H. Loving and J. E. Caradine, both of West Point, for appellants.

The registration of a deed is presumptive evidence of its delivery.

Ingraham v. Gregg, 13 S. & M. 22; Bullett v. Taylor, 34 Miss. 708; Morris v. Henderson, 37 Miss. 492; Metcalf v. Brandon, 60 Miss. 685.

The burden of proof was on the complainant to establish the facts set up in his bill.

A grantor need not deliver to the grantee directly. If he does, the delivery must be in his lifetime. He may, however, deliver it to a depositary to be by him delivered to the grantee, and this last delivery will be good, though made after grantor's death, provided always, and only if, the depositary accepted in the capacity of agent of the grantee, not the grantor, so that the grantor could never recall it.

Wilson v. Bridgforth, 108 Miss. 199, 66 So. 524.

This Honorable Court in the Bridgforth case held that the delivery of the deeds was sufficient and effectual and that Bridgforth's statement that he was giving Wilson some papers to keep for him and to give to his children after his death, was in legal effect an irrevocable delivery without any reservations whatever; and in the instant case, the grantor, Mrs. Alexander, told Henley to carry the deeds to the bank and place them there, with instructions that they be delivered to appellants at her death, and her instructions to Henley are stronger than Bridgforth's instructions to Wilson, and what instructions Mrs. Alexander gave to Henley constitute the controlling point of the instant case, and Henley's testimony as to the same is the only testimony in the record relative thereto and it is not contradicted.

We take the position that this case falls squarely within the rule announced in the Bridgforth case and that the Bridgforth case is controlling and decisive in our favor, and that this case should be reversed and rendered in favor of these appellants.

Roberds & Malone, of West Point, for appellee.

The deed of April 17, 1930, has no legal description.

Hatchett v. Thompson, 165 So. 110, 174 Miss. 502.

The other deed to the home place, dated February 24, 1933, has the same description except that after that description the lands are attempted to be further described by referring to lands of other people and a road. We do not think the description in this deed is good but the chancellor did not pass on that.

In the Bridgforth case all papers were prepared by an attorney and the entire matter supervised by him, one learned in such matters. Bridgforth gave his own direction to Worthy, specific, clear, specified deeds, attorney present directing attention to the deeds. Here the directions were not given by Mrs. Alexander to the depositary. The cashier was not sure he would have known her. The entire matter of depositing the deeds was handled by Henley and Beasley, beneficiaries.

Whether the delivery is such that it will take final effect at the grantor's death is largely a question of fact, to be determined from the particular circumstances of each case.

8 R. C. L. 997, sec. 61; Bury v. Young, 35 A, S. R. 186; Grilley v. Atkins, 112 A. S. R. 152.

The burden of proof of due delivery to them was on appellants, grantees. There was a fiduciary relation between them.

Lynch v. Lynch, 83 So. 807; Bourn v. Bourn, 140 So. 519. Recording an instrument after death of grantor raises no presumption whatever.

8 R. C. L. 988, sec. 55.

With all of the conflicting testimony, will it be said the chancellor, seeing the witnesses, looking behind the scene, weighing human nature, emotions, equations and short-comings, that there was not testimony to support the findings of the chancellor? Various expressions of this court have set the rule when findings of fact by the chancellor will not be disturbed. Unless Shown on appeal to be "clearly erroneous," they will be affirmed.

Stevens v. Magee, 33 So. 73, 81 Miss. 644; Melchoir v. Kahn, 38 So. 347; Heard v. Cottrell, 100 Miss. 42; Lott v. Hull, 104 Miss. 308; Lee v. Wilkinson, 105 Miss. 358; Bland v. Bland, 105 Miss. 478; Crump v. Tucker, 149 Miss. 711; Interstate Cattle Co. v. Lapsley, 24 So. 532; Carl v. Miller, 162 Miss. 760; Partee v. Bedford, 51 Miss. 84; Carter v. Catchings, 48 So. 515.

Findings of facts in equity suit on conflicting evidence will not be disturbed on appeal.

Mutual Life Ins. Co. v. Herron, 79 Miss. 381; Bank v. Cole, 111 Miss. 39; Jackson v. Banks, 144 Miss. 392; Northern Assurance Co. v. Lumber Co., 105 Miss. 688; Hibernia Bank & Tr. Co. v. Turner, 156 Miss. 842; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441; Quine v. Wolcott, 165 Miss. 325; Aldridge v. Bogue Phalia Drainage Dist., 106 Miss. 626.

Delivery is the most essential act in the making of a deed and it can have no effect without proof of delivery, even color of title.

Bledsoe v. Little, 4 H. 13; Jelks v. Barrett, 52 Miss. 315; Morgan v. Hazlehurst Lodge, 53 Miss. 665.

The grantor may deliver it to a depositary to be by him delivered to the grantee after death of grantor, "provided always, and only if, the depositary accepted in the capacity of agent of the grantee, not the grantor, so that the grantor could never recall it. It must be left with the depositary without a reservation by the grantor, express or implied of the right to retake it or otherwise control its use."

Hall v. Waddill, 78 Miss. 26.

It certainly cannot be said in this case that Mr. Dugan, cashier, accepted the deeds as depositary so the grantor could never recall them.

Ann. Cas. 1915C 380; Weisinger v. Cock, 67 Miss. 511.

The burden here is on grantees to show delivery.

Lynch v. Lynch, 121 Miss. 752, 83 So. 807.

Recording is not delivery even in grantor's lifetime. It depends on grantor's intention.

54 L.R.A. 885, note; 36 L.R.A. (N.S.) 944, note; Lynch v. Lynch, 121 Miss. 752, 83 So. 807.

Delivery must be to "stranger;" delivery to grantor's agent is not a legal delivery.

Van Valkenburg v. Allen, 137 A. S. R. 561; 8 R. C. L. 993; Gross v. List, 33 Ohio C. C. 579.

Deposit for safe keeping is not a legal deposit.

8 R. C. L. 992.

Subsequent handling of the property is strong evidence of intention.

8 R. C. L. 1092, sec. 64.

Clearly the chattel instrument was in its nature testamentary.

McWillie v. Van Vacter, 35 Miss. 446; Martin v. Graham, 75 So. 448; Kelly v. Covington, 81 So. 485; Williams v. Green, 91 So. 39.

OPINION

Ethridge, P. J.

Appellee Rufus F. Beasley, filed a bill in the chancery court of Clay county seeing the cancellation of certain deeds recorded there from Mrs. M. A. Alexander, deceased, to Elmer G. Beasley and Persia Beasley. It was alleged in the bill that Mrs. Alexander departed this life on July 13, 1935, leaving, as her surviving heirs at law, her brother, Rufus F. Beasley, and the two children of a deceased brother, the appellants, Elmer G. Beasley and Persia Beasley, who claimed title to the property by virtue of certain deeds set out and make exhibits to the bill of complaint, and that Elmer G. Beasley had conveyed some of the land by a deed, which is not on record, to W. M. Henley, and that complainant does not know its description. The bill also alleges that Persia Beasley took out letters of administration on the estate of Mrs. Alexander, and represented in her application therefor that the personal property of Mrs. Alexander would amount to only eight hundred fifty dollars...