Becker v. Dunagin
| Decision Date | 05 March 1917 |
| Citation | 113 Miss. 338,74 So. 275 |
| Court | Mississippi Supreme Court |
| Parties | BECKER v. DUNAGIN |
March 1917
APPEAL from the chancery court of Jones county, HON. SAM WHITMAN Chancellor.
Bill by Sophie Beckner against W. A. Dunagin. From a decree for defendant, complainant appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
Shannon & Schauber, for appellant.
Counsel in their brief, as they did in the lower court lay great stress on the fact that appellant and her daughter both read the deed that had been prepared before appellant executed it. This same fact occurred in the case of Howell v. Gibson supra, where the Howells were unfamiliar with land descriptions, and did not know of the fraud practiced on them until after the deed was executed and delivered, and this court held in that case that complainants were entitled to have the deed reformed.
We do not think this court will hold that because appellant and her daughter, who testified that they were unfamiliar with land descriptions, are bound by this deed especially when it is written in "metes and bound." The appellant, in her testimony states that on hearing the deed read to her, and on reading it herself, the deed said nothing about the alley, and as no mention of the alley was made in the deed, she of course, did not think the deed included the alley, which is certainly a most reasonable explanation as to why she did not think the deed contained the alley. It is clearly established that she did not agree to sell the alley to appellee, nor did appellee agree to buy the alley from her; then if the alley is included in the deed, which the testimony shows, it was certainly in there by fraud, accident or mistake, and appellee denies that it was in there by accident or mistake, so there is no other way that it could have been put in there except by fraud, as is clearly proven.
The case of Jones v. Jones, reported in 88 Miss. on page 784, is not applicable to the case now before the court. In the first place the facts in that case were in dispute which is not so in this case, and Justice TRULY, who delivered the opinion states his reason therefor in the first two sentences of his opinion, as follows:
Surely this court cannot say from this record that it was the intention of the parties that appellee should have the ten-foot strip of alley, which separated the one house he purchased, from the four houses that appellant still owned, and which strip or alley, appellant testifies is absolutely necessary for the enjoyment of her remaining four houses.
The case of Christian v. Green, 45 So. 425, with which counsel closes their brief with a quotation from Mr. Justice MAYES, is a case that was decided on the facts also, and which this court disagreed with the chancellor in the lower court on the fact, but is not applicable to this case, where there is no dispute as to the facts, and only a question of law is involved. The lower court holding that on testimony submitted by complainant she was not entitled to the relief prayed for in her bill of complaint.
There is more at stake in this suit than the mere value of a ten-foot strip of land. There is a principle involved. Will the courts of the country take land from a grantor that she never sold, nor agreed to sell, and for which she received no consideration whatever, merely because the grantor is unable to understandingly read, or understand when read to her, the description worded in "metes and bounds." This is really the only question involved in this suit. We submit that complainant is not estopped, for she had a perfect right to rely on appellee's preparing the deed correctly, and not practicing a fraud on her as appellee did. Even if the law was otherwise, which we submit it is not, we do not believe the court should deny complainant the relief sought in her original bill of complaint.
The court should reform the deed that appellee had her to execute, so as to return to complainant the ten-foot strip, or alleyway, which is necessary to the enjoyment of her four houses, which she did not sell, or agree to sell appellee.
We think that this case is on all fours with the case of Howell v. Gibson, supra, and, relying on that case, we do not believe that this court will hold that appellant cannot have her deed reformed so as to express the true agreement of the parties at the time they made the trade. It did not include the sale of the ten-foot strip of land, or alleyway, which is the land involved in this litigation.
Street & Street, for appellee.
The defendant read the deed to complainant, she read it herself and her daughter read it to her. She had it in her possession for two days, and was at perfect liberty to submit same to her attorneys, or to anyone else, for examination and approval; and this was her duty, if she did not understand it. The exercise of the slightest care and caution on her part, while the deed was in her possession for two...
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