Bethea v. Mullins

• Decision Date: 13 February 1956
• Docket Number: No. 39914,39914
• Citation: 85 So.2d 452,226 Miss. 795
• Parties: Irene BETHEA v. Garrett P. MULLINS.
• Court: Mississippi Supreme Court

Page 452

85 So.2d 452

226 Miss. 795

Irene BETHEA v. Garrett P. MULLINS.

No. 39914.

Supreme Court of Mississippi.

Feb. 13, 1956.

George B. Grubbs, Noel W. Buckley, J. P. Edwards, Mendenhall, for appellant.

Joe A. McFarland, Jr., Bay Springs, James B. Sykes, J. W. Walker, Mendenhall, for appellee.

HOLMES, Justice.

On March 23, 1954, the appellant executed to the appellee a deed absolute on its face purporting to convey and warrant to the appellee, for the recited consideration of $100 cash, forty acres of land described as the SE 1/4 of the SE 1/4 of Section 33, Township 10 North, Range 19 West, in Simpson County, Mississippi.

Claiming that said instrument was intended as security for a loan of $100 made by the appellee to the appellant, to be repaid on January 1, 1955, the appellee brought this suit in the Chancery Court of Simpson County to have said instrument declared to be a mortgage and cancelled. A sum sufficient to pay the alleged debt was tendered by the appellant with her bill of complaint and was deposited in the registry of the court. The bill charged fraud in the procurement of the deed and that it was intended as a mortgage to secure money borrowed.

The appellee answered the bill denying the material allegations thereof and averring that he purchased the land and that the instrument in question was intended to be an absolute conveyance, and that pursuant thereto, he went into the possession of the land on the date of the deed and has since remained in possession thereof.

On the hearing of the cause and at the conclusion of the appellant's evidence, the appellee made a motion to exclude the evidence for the appellant and to dismiss the original bill, and the chancellor entered a decree sustaining the motion and dismissing the original bill, and from this decree the appellant appeals.

The rule is well settled that when at the conclusion of the complainant's evidence the defendant moves to exclude the evidence and dismiss the bill, the court should assume as true all facts which the complainant's evidence fairly tends to establish, together with all reasonable inferences to be deduced therefrom. Griffith's Mississippi Chancery Practice (2d ed.), Sec. 584; Partee v. Pepple, 197 Miss. 486, 20 So.2d 73; Skrmetta v. Moore, 202 Miss. 585, 30 So.2d 53; United States Realty Sales v. Kuhn, 206 Miss. 123, 39 So.2d 776.

It therefore becomes important that we consider the evidence introduced on behalf of the appellant, who was the complainant below. This evidence shows substantially the following:

The appellant is a member of the colored race and was about 47 years of age at the time of the trial of this cause at the February 1955 term of the Chancery Court of Simpson County. She was residing at the time in Jackson, Mississippi, and had been so residing since about the year 1952. She and her husband were separated. They had formerly lived in Simpson County. On March 23, 1954, the appellant was the owner of forty acres of land in Simpson County, described as the SE 1/4 of the SW 1/4 of Section 33, Township 10 North, Range 19 West. Her husband, Adam Bethea, had purchased the land in about the year 1943 for $600. In about the year 1952, Adam Bethea conveyed the land to the appellant for a recited consideration of $100. About six or eight acres of the land was cultivatable and there was some timber on the land. The land was located about three and a half miles from the Gwinville Gas Field. The land was worth from $800 to $1,200.

On the date aforesaid, March 23, 1954, the appellant went to Mendenhall to ascertain the amount of taxes on her land and to arrange to pay the same. She went to the sheriff's office and learned from the appellee, who was the sheriff of the county, that her taxes amounted to $11.10. She then went to the Peoples Bank in Mendenhall where she contacted Mr. Davis, the president and cashier of the bank, and applied for a loan of $100 on the land, which she needed to pay her taxes, some hospital bills and other small debts. She exhibited her deed to Mr. Davis. Mr. Davis told her he would make the loan provided she furnished him a certificate of title and was properly identified. She then returned to the sheriff's office to get the appellee to identify her. She had known the appellee for a number of years and referred to him as the high sheriff in whom she reposed full confidence. She told the appellee of her conversation with Mr. Davis, and requested the appellee to identify her. There was a telephone conversation between the appellee and Mr. Davis but the record does not disclose what was said. The appellee then took the appellant into his private office and told her he saw no reason for her to spend twenty-five or thirty dollars for a title certificate and he would lend her the $100. The appellee then asked the appellant if she wanted to sell the land and she replied she did not. The appellee then offered her $800 for the land, and in addition thereto, offered to build her a little shack on the back of it 'to take care of your chickens for life time.' She again advised the appellee that she did not want to sell the land. The appellee then went out of the office with appellant's deed in his hand, and in just a little while, he returned with a paper and placed it before the appellant and directed her to 'sign right here.' Reposing confidence in the appellee, she signed the instrument without reading it, believing it to be a deed of trust or security for the loan.

After the appellant signed the paper, the appellee gave her his check for $100, and out of the $100 she paid the taxes of $11.10. According to the testimony of the appellant, the loan which she understood she was obtaining from the appellee was to be repaid on January 1, 1955. After the appellee had written his check and given it to the appellant, he tore out the blank check just beneath the check which he had written and he wrote on the back thereof the figures, $100, $8, and $3, making a total of $111. This total amount, according to the testimony of the appellant, was the amount which she was to pay the appellee on January 1, 1955, in repayment of the loan. The appellee, testifying as an adverse witness, admitted that this notation on the back of the blank check was in his own handwriting. This blank check with the notation on the back thereof was produced and introduced in evidence.

On January 1, 1955, the due date of the loan, the appellant went to Mendenhall for the purpose of repaying the money which she had borrowed, according to her understanding, from the appellee. She found that on that date the courthouse was closed, the bank was closed, and the post office was closed, and she was unable to contact the appellee. She therefore returned to Jackson. The second day of January was a Sunday. She returned to Mendenhall on January 3rd for the purpose of contacting the appellee and repaying the loan, and she had with her $120 in cash with which to repay the loan. She went to the courthouse and saw the appellee and made known to the appellee the purpose of her visit, and the appellee advised her that he was very busy collecting taxes and could not talk to her on that day, and told her to come back the next week or some other time. She went to the bank and deposited $120. On the next day, January 4th, she returned to Mendenhall with a view of contacting the appellee and repaying the loan. She withdrew from the bank on that day the $120 which she had deposited in order to make it available for the repayment of the loan. The bank statement was introduced in evidence corroborating the appellant in this respect. She went to the courthouse on January 4th and saw the appellee leaving the building. She inquired of someone in the sheriff's office when the appellee would return and was told that the appellee had gone bird hunting and it was not known when he would return. She went to the appellee's house early in the evening and inquired for him and was then told by a boy in the yard, presumably the appellee's son, that he had gone bird hunting and that it was not known when he was to return. She waited around until after dark and then returned to Jackson, and on the next day, January 5th, she returned to Mendenhall. Becoming disturbed about the matter, she consulted an attorney. The attorney examined the records and ascertained that the instrument which the appellant said was intended as a deed of trust or security for a loan was in fact an absolute conveyance conveying and warranting the land to the appellee.

On January 3rd, when the appellant first contacted the appellee at the sheriff's office and was told to come back in a week or some other time, the appellee executed a conveyance of the land to a deputy in his office. No consideration was paid for this conveyance. The deputy delivered the deed forthwith to the chancery clerk for record. Very shortly thereafter, however, manifestly sensing some irregularity in the transaction, he went back to the chancery clerk's office and withdrew the deed and tore it up. Thereafter, the sheriff executed a conveyance of the land to his attorney. The revenue stamps on this deed indicated a...