Bratton v. Graham

• Decision Date: 31 January 1927
• Docket Number: 26151
• Court: Mississippi Supreme Court
• Parties: BRATTON et al. v. GRAHAM et al. [*]

111 So. 353

146 Miss. 246

BRATTON et al. v. GRAHAM et al. ^[*]

No. 26151

Supreme Court of Mississippi

January 31, 1927

Division B

Suggestion of Error Overruled Feb. 28, 1927.

APPEAL from chancery court of Lafayette county HON. N. R. SLEDGE, Chancellor.

Action by G. E. Bratton and another against Will Graham and others attacking a judgment and conveyance thereunder. Prom a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Judgment reversed and remanded.

Bratton & Mitchell and E. O. Sykes, for appellants.

I. This will was evidently written by a lawyer who was familiar with the Two Donee Statute. It is perfectly legal to prohibit Bratton from selling this land and timber. In fact, a succession of two donees then living could have been prohibited from selling. On the other hand, an unqualified prohibition to sell before 1975 would violate the statute.

We submit that the testator evidently knew and understood this fact because his particular prohibition is solely directed at Bratton. This theory is certainly a reasonable one and would uphold the legality of the will through the devises to the wife and heirs of Bratton and this is as far as we are now called upon to go.

For the authorities, see: Schlater v. Lee, 117 Miss. 701 at 707; Scott v. Turner, 137 Miss. 636; Smith v. Muse, 134 Miss. 827; Reddoch v. Williams, 129 Miss. 706; Brattle Square Church v. Grant, 63 Am. Dec. 725, 3 Gray 142.

II. Sale to James and Phil Stone. The consideration paid was from one-twentieth to one-fiftieth of the value of the property. This consideration is so grossly inadequate that a court of equity will set it aside. Hesdorffer v. Welsh, 127 Miss. 261, is express authority for this.

Again, Bratton cannot alienate this property before 1975. This means a voluntary alienation by him. 2 C. J., page 1035 et seq. See especially note on page 1037 as to what are voluntary and involuntary alienations. Under this note (g) an execution sale was held to be an involuntary alienation in Hammel v. Ins. Co., 54 Wis. 72, 41 Am. Rep. 1.

James Stone & Son, Wilson, Gates & Armstrong, Rufus Creekmore and J. B. Fontaine, for appellees.

The common-law rule against perpetuities is in full force in Mississippi. Nichols v. Day, 128 Miss. 764. The principal and plainest objection to the limitations in this devise was its offense against the common-law rule against perpetuities. It has, therefore, always been our idea that the principal object and the purpose of the will was neither as claimed by the heirs of Bratton, appellees, and held by the chancellor; to-wit; to tie up the sale of the timber until 1975; nor, as claimed by the appellants, to give a life estate to G. E. Bratton and remainder to his wife and children; but a medium position between the two.

Our view is that the principal object of the device in the will was to give the property to G. E. Bratton, and the only object of the limitations over was to prevent the alienation of the property until 1975. So, while we agree that the principal object of all the limitations after the estate (called in fee simple) to Bratton was to prevent the alienation of the land and timber, we cannot agree that it was the principal object of the will, the devise, or even the principal purpose of the testator. It comes within that class of cases where the limitation is not good at all because the very idea of the limitation is defeated but still the grant ahead of the limitation is good. It is just like an estate in fee tail. The estate in tail is good but the limitations carrying that estate to remoter generations is bad. The tenancy in tail becomes a fee simple.

Reddoch v. Williams, 129 Miss. 730, cited by opposing counsel, while in point, is not in point for him, but for us, for the reason that he relies upon the quotation from Gully v. Neville, 55 So. 289, which states that if the ulterior limitation is void, the will may be saved by dropping that ulterior limitation and leaving the rest of the will to stand.

We, therefore, claim that the true law of this will is that a good estate in fee was expressly conveyed to Bratton and that for the purpose of limiting his right of alienation, ulterior limitations were devised, which ulterior limitations were void. They were not void in part, but as a whole, because the idea and purpose of all the limitations was to tie up the estate until 1975, which was longer than the law permitted. We, therefore, think that although the chancellor gave the wrong reason therefor, under the situation that arose in this case, the decree below should be affirmed.

The James Stone and Son judgment. An attack is made on the title of James Stone and Son upon the ground that they bought in the property for a grossly inadequate price and the price is treated as six hundred dollars instead of their whole debt, about thirty-two hundred and fifty dollars.

But Stone and Son neither levied upon, bought, nor had sold an undoubted title, but it is even now claimed no title at all. Notwithstanding that fact, however, Stone and Son always offered to return the property if Bratton would do equity and pay them the debt for which the execution was levied. Hesdorffer v. Welsh, 127 Miss. 261, cited by appellants, is not an authority for their position in this case. That was a sale of a good title to land made under a trust deed.

Argued orally by E. O. Sykes, for appellants, and Rufus Creekmore, for appellees.

OPINION

ETHRIDGE, J.

H. H. Graham, formerly of Lafayette county, Miss., now deceased, made a will disposing of his property, in which he made various devises and bequests to different persons. In item 7 of the will he disposed of real estate as follows:

"Item 7. All of my real estate, that I this day have, or that I may have, possess or acquire at my death, I give, bequeath, and devise to G. E. Bratton, Caddo Mills, Texas, to have and to hold in fee simple forever; with this proviso however, that the said G. E. Bratton shall not grant, bargain, sell, convey, or in any manner dispose of my real estate, or the timber thereon or any part, parcel or quantity thereof until the first day of January, 1975. But should said G. E. Bratton die before said date, then this limitation, relative to sale of same, shall be null and void, and the aforesaid property shall vest absolutely and indefeasibly in fee simple to the wife and heirs of the body of G. E. Bratton, share and share alike. If G. E. Bratton, his wife and all the heirs of his body should die before the date aforesaid, then my real estate shall descend, share and share alike, to the four legatees designated in item 6. But should he, his wife or any one or more of the heirs of his body be living on aforesaid date, or descendants of the heirs of his body, be living, then he, she or they take an absolute and indefeasible title to aforesaid real estate. My purpose in making this limitation is to prevent the sale of either my lands or my timber on said lands until the first day of January, 1975. I know that G. E. Bratton is now a resident of Texas, and would in all probability, if this provision were not made, proceed to sell said lands and timbers to my enemies who have continually and constantly tried to purchase same from me, but which I have just as often and strenuously refused to sell to them. My wish is that G. E. Bratton move on said property and live and die on same, if convenient and expedient, and in the event it is not such for him, then it is my will that the place and timber remain intact, complete and entire, just as they are now held by me, subject to the limitations above set forth."

And item 8 of the will provides as follows:

"Item 8. Should any of the limitations, stipulations, restrictions or provisions set forth in item 7 be violated, abused or disregarded, then it is my will and wish that all of my real property, divest and be alienated out of and from G. E. Bratton and his heirs, and that it descend according to the statute of descent and distribution. It is furthermore provided that the limitations mentioned in item 7 shall not be defeated and the property pass by any trick, wile, subterfuge, or evasion, but that the letter of the limitation shall be followed to the letter."

Subsequent to the death of Graham, G. E. Bratton employed a firm of lawyers in Oxford, James Stone & Son, to file a suit to contest the will, but abandoned the suit before it was construed by the court. The attorneys seem to have been employed on some kind of contingency basis, and were not willing to discontinue the suit without payment of the fee for the services for which they were employed. Bratton however, did not pay them, and they filed suit in the county against Bratton for the fee, and recovered judgment for two thousand nine hundred seventy-five dollars, which judgment was not paid by Bratton, and the lands embraced in item 7 of the will were levied upon and sold under execution at and for the sum of six hundred dollars. Subsequently these attorneys sold the interest obtained under the execution to the persons named in item 6, to whom was willed all of the personal property, except certain specific legacies. These persons gave a deed of trust upon the lands embraced in item 7 of the will to these attorneys for the full amount recovered by the judgment. Thereafter, G. E. Bratton, his wife and children, filed this suit against the defendants herein attacking the judgment and conveyance thereunder as being void: First, because no process was served upon him and the judgment was void for that reason; second, if the judgment was void, the sale thereunder was void, first, because the sale was for a grossly inadequate amount, and, second, that, under the terms of the will, G. E. Bratton's interest could not be sold and...