Bourn v. Bourn

• Decision Date: 28 March 1932
• Docket Number: 29910
• Citation: 163 Miss. 71,140 So. 518
• Court: Mississippi Supreme Court
• Parties: BOURN v. BOURN et al

140 So. 518

163 Miss. 71

BOURN v. BOURN et al

No. 29910

Supreme Court of Mississippi

March 28, 1932

Division B

1 DEEDS. Bill against son to cancel deed which mother intended to be will held to charge facts sufficient for cancellation because of fraud and absence of meeting of minds.

Bill alleged that widow, in consideration of son's undertaking to care for her during remainder of her life, executed deed to son which she intended should be a will, and should not be recorded until after her death, and that son caused deed to be recorded, and then abandoned premises and went to another state. It was not necessary that bill should use word "fraud," or expressly allege that minds of parties did not meet, since to have done so would have been mere conclusion of pleader.

2 DEEDS. Son to whom mother conveyed land occupied very close fiduciary relationship, subject to rules governing conventional fiduciary relations.

Rules governing conveyances between parties occupying a fiduciary relationship like that in question are the same as those governing conveyances between parties occupying the conventional fiduciary relations, such as physician, and patient, attorney and client, guardian and ward, and trustee and cestui que trust.

3. DEEDS. Where fiduciary relation exists, as between parties to deed, presumption of invalidity arises, which requires clear evidence to overcome it.

Such presumption can be overcome only by clear evidence of good faith, of full knowledge, and of independent consent and action.

HON. T PRICE DALE, Chancellor.

APPEAL from chancery court of Marion county, HON. T. PRICE DALE, Chancellor.

Bill by Mrs. S. J. Bourn and others against Carl Bourn. Decree for complainants, and defendant appeals. Affirmed.

Affirmed.

Kelly J. Hammond and Hall & Hall, all of Columbia, for appellant.

Although it is shown almost conclusively that the appellant did make provision for his mother still we submit that even though the chancellor found as a matter of fact that Carl had not supported his mother and that to this extent the consideration for the deed had failed, still there was no basis of law whatsoever to cancel the deed in question because of such failure of consideration. This is sole and only point involved in this case both in the lower court and in this appeal. The Supreme Court of Mississippi has repeatedly held that where the consideration for a deed is a promise to support the grantor, there can be no cancellation of the deed on the ground of failure of such consideration.

Dixon v. Milling et al., 102 Miss. 449, 59 So. 804.

The general rule that the mere failure by grantee to perform a promise, which formed the whole or part of the consideration inducing an executed conveyance gives rise to no right in equity unless such promise amounts to a condition; and it is a rule of construction that, in case the language or intention is doubtful, the promise or obligation of the grantee will be construed to be a covenant, limiting the grantor in an action thereon, and not a condition subsequent with the right to defeat the conveyance.

Gardner v. Knight, 124 Ala. 273, 27 So. 298.

The foregoing rule has been consistently followed by this court for many years in the following cases:

Lee v. McMorries, 107 Miss. 889, 66, So. 278; Lowry v. Lowry, 111 Miss. 153, 71 So. 309; N. O. G. N. R. R. Co. v. Belhaven Heights Co., 122 Miss. 190, 84 So. 178; Wynn v. Kendall, 122 Miss. 809, 85 So. 85.

R. H. Dale, of Columbia, for appellees.

Instruments of this character, and between parties related, as are the parties to this transaction, are presumed to be fraudulent, and the rules governing such transactions are the same as these where the parties occupy conventional fiduciary relationship, and there is a presumption of invalidity of such transactions, requiring evidence of full knowledge and independent consent and action.

Brooks v. Brooks, 145 Miss. 845.

Appellant contends that the decree of the Chancellor should be reversed for the reason that appellee did not allege fraud, and did not prove any fraud. This may be true, but it is alleged in the bill of complaint that she executed and delivered an instrument of writing, which she intended to be a will. It is, therefore, clear that if she intended to execute a will and in fact executed a deed, then, as stated, there was no meeting of the minds of the parties and the instrument is void. It is not necessary to allege fraud, or prove fraud in a case such as this, for in such case fraud is presumed, and as stated, it devolves upon the grantee to show independent consent and prove by disconnected parties that it was fair. This appellant did not do.

Ham v. Ham, 146 Miss. 161.

The rules governing gifts, conveyances, etc., between parties to such a fiduciary relation are the same as those governing gifts, conveyances, etc., between parties occupying the conventional fiduciary relations, such as physician and patient, attorney and client, guardian and ward, trustee and cestui que trust, etc.

Ham v. Ham, 146 Miss. 161; 2 Pomeroy, Equity Jurisprudence (4 Ed.), section 596, section 597; Meek v. Perry, 36 Miss. 190; Hitt v. Terry, 92 Miss. 710, 46 So. 829.

OPINION

Anderson, J.

Appellees filed their bill against appellant in the chancery court of Marion county to cancel a deed to certain land in that county made by appellee Mrs. S. J. Bourn to appellant. The cause was heard on bill, answer, and proofs, resulting in a final decree in appellees' favor. From that decree appellant prosecutes this appeal.

The material allegations of appellees' bill were established by the evidence. Probably appellees' case could not be better stated than by setting out the allegations of that bill, which follow, leaving off the formal parts, including the prayer:

"That the on 21st day of March, 1925, complainant, Mrs. S. J Bourn, was the owner of and was seized and possessed of in fee simple, the following described land situated in Marion county, Mississippi, to-wit:

"E. 1/2 of S.W. 1/4 and S. 1/2 of N.W. 1/4 of S.E. 1/4 of Section 20, Township 5 North, Range 19, in Marion County, Mississippi.

"That on said date complainant, Mrs. S. J. Bourn, was a widow, and was residing upon said land, and was advanced in years, and desiring and intending to provide for herself for the remainder of her life by arranging with her son, Carl Bourn, the defendant herein, to care and provide for her during such remainder of her life, and desiring and intending to compensate him for his trouble and expense in so doing, made, executed and delivered unto the said Carl Bourn, for the sole and only consideration of the fact that he would live with her and care for her during the remainder of her life, an instrument of writing, which she intended to be a Will, devising and bequeathing unto him, after her death, the above described land, which she desired and intended should not be recorded until after her death, which said instrument is of record in Book 54, Page 595, of the Records of Land Deeds of said county, and a copy of which is hereto attached and marked Exhibit A and prayed to be taken as a part of this bill of complaint.

"That immediately after the complainant, Mrs. S. J. Bourn executed said instrument, with the understanding and agreement aforesaid, she went away to visit another son in an adjoining state, and when she returned six weeks later she learned to her great sorrow and deep regret, and to her astonishment that the defendant, Carl Bourn, had abandoned said premises and went away to another state and has never returned to live with her, or to provide for her in any manner, and is still absent from said premises, and has never since said date contributed towards the up-keep of said premises, or in any manner contributed to complainant's support, or provided for her any manner, and she was caused and compelled to make other arrangements for her care and protection during the remainder of her life.

"That on...