Beason v. Coleman

• Decision Date: 06 April 1908
• Docket Number: 13,229
• Citation: 92 Miss. 622,46 So. 49
• Court: Mississippi Supreme Court
• Parties: JOHN G. BEASON, EXECUTOR v. HENRY M. COLEMAN ET AL

46 So. 49

92 Miss. 622

JOHN G. BEASON, EXECUTOR v. HENRY M. COLEMAN ET AL

No. 13,229

Supreme Court of Mississippi

April 6, 1908

FROM the chancery court of Lauderdale county, HON. JAMES L MCCASKILL, Chancellor.

Beason executor, appellant, was complainant in the court below Coleman and others, appellees, were defendants there. From a decree in defendants' favor the complainant appealed to the supreme court.

The bill charged that the complainant is executor of the last will and testament of W. R. Beason, deceased; that testator died seised and possessed of lands, which by the terms of his last will and testament he bequeathed to his widow, Mrs Elizabeth Beason, during her life and at her death to be sold and the proceeds divided among complainant and other devisees named; that Mrs. Beason, the widow, is still living; that on the 18th day of December, 1889, the deceased executed and delivered a deed to Henry M. and P. E. Coleman, defendants whereby the N.W. 1/4 of the S.W. 1/4 of section 13, township 7, range 15 E., was conveyed; that at the time said deed was executed it was the intention of the parties that the N.W. 1/4 of the S. E. 1/4 of said section, township, and range should be conveyed to defendants, and that the erroneous description was inserted in the deed by mistake; that on the 15th day of August, 1901, the deceased and the defendants attempted to correct the mistake, and another deed was executed by deceased, which conveyed to defendants the N. E. 1/4 of the S.W. 1/4 of said section, township, and range, and that this description was by mistake also erroneous; that on the 30th day of September, 1901, a correct deed was executed by deceased, conveying to defendants the N.W. 1/4 of the S. E. 1/4, in accordance with the mutual intention and agreement of the parties; that on the 20th day of November, 1889, a deed was executed by W. R. Beason, complainant's testator, to D. C. and M. Torrence, conveying the N. E. 1/4 of the S.W. 1/4 of said section, township, and range. The bill prayed that the deed executed by W. R. Beason, complainant's testator, to defendants on the 18th day of December, 1889, purporting to convey the N.W. 1/4 of S.W. 1/4 of section 13, township 7, range 15 E., be canceled as a cloud upon complainant's title. To this bill a demurrer was interposed, because the bill did not show certain deeds executed by the widow of the deceased on September 21, 1903, conveying all three of the tracts of land herein described to the defendants, and because D. C. and M. Torrence are not made parties to the bill. The demurrer was sustained by the court, and the bill dismissed. In the supreme court the appellees for the first time raised the question of appellant's right as executor to institute and maintain the suit to remove the cloud from title to land.

Reversed and remanded.

Williamson & Gilbert, for appellant.

The demurrer raises the proposition that it was necessary to show certain deeds from the widow of the testator; we submit that this was unnecessary, for the reason that any deed she might have given after the death of her husband could have operated only to convey her life estate, that being her only estate in the lands by virtue of the will of her husband. The widow Elizabeth Beason was not a necessary party to the suit for the reason that the bill does not seek to cancel any deed she made subsequently to the death of the testator, or prior to his death, therefore she has naught to do with this suit or its results.

The demurrants also complain because D. C. and M. Torrenee are not made parties. The bill does not seek to affect or challenge the rights of said persons in any way under the deed referred to, but alleges, in order to strengthen the allegation of the mistake of the parties in describing the land conveyed on the 5th day of August, 1901, when the deed described the N. E. 1/4 of the S.W. 1/4 sec. 13, T. 7, range 15 E., that the identical land had been by the testator twelve years previous conveyed to D. C. and M. Torrence.

The bill does not seek the cancellation of more than one deed, and that is the deed dated December 18th 1889, purporting to convey title to the N.W. 1/4 of the S.W. 1/4 sec. 13, T. 7, range 15 E.

If the prayer of the bill should be granted, and a decree rendered cancelling and annulling the deed purporting to convey the N.W. 1/4 of the S.W. 1/4 sec. 13, T. 7, range 15 E., the reversionary interest in the land would be clear, and subject to sale by the executor under the provisions of the last will and testament of W. R. Beason, deceased, and the proceeds thereof divided according to the terms of the will, among the legatees therein named. If the deed is not annulled and cancelled the appellees are at liberty to sell the land at any time to a bona fide purchaser and thereby do injustice to the legatees.

There is no ground of demurrer challenging the right of the executor to sue in this instance; this was not argued on the hearing of the demurrer, but has been raised by counsel...