Brown v. Long Bell Co.

• Decision Date: 23 February 1925
• Docket Number: 24546
• Citation: Brown v. Long Bell Co., 138 Miss. 548, 103 So. 353 (Miss. 1925)
• Court: Mississippi Supreme Court
• Parties: BROWN et al. v. LONG BELL Co. et al. [*]

103 So. 353

138 Miss. 548

BROWN et al. v. LONG BELL Co. et al. ^[*]

No. 24546

Supreme Court of Mississippi

February 23, 1925

Division B

Suggestion of Error Overruled April 6, 1925.

APPEAL from chancery court of Clarke county, HON. GEO. C. TANN Cancellor.

Suit by A. D. Brown and others against the Long Bell Company and others. Decree of dismissal, and complainants appeal. Affirmed.

Decree affirmed.

Amis & Dunn and Graham Perdue, for appellants.

What was the legal effect of the act of Mrs. Mollie Brown, the life tenant, in signing, acknowledging and recording the deed conveying her life estate to her children. That it was not done for the purpose of conferring any real benefit on her children but for the sole purpose of procuring a decree for the sale of her children's estate in remainder is too plain for argument. She could have sold her life estate at any time without any decree of court. But she wanted to sell her children's interest too, as is shown by the original petition; and this could not be done without a decree of court. Nor could that decree of court be obtained unless her life estate should become merged into the estate in remainder owned by her children.

The uncontradicted proof is that the deed was never delivered to or accepted by the grantees, and that they never knew of its existence or of the record thereof until after the death of the life tenant. In fact, it clearly appears by the record in the cause that five out of the seven grantees named therein were minors at the time, who could not accept the deed even if it had been tendered to them. It seems clear, therefore that the sole purpose of the life tenant in making and recording the deed was to confer jurisdiction on the court to sell the entire estate in the land, the estate in remainder as well as the life estate.

It seems clear to us that if the court had no jurisdiction of the subject-matter of the suit at the time of filing the original petition, then that the life tenant, one of the parties to the suit, could not by her own act, without the knowledge or consent of the remaindermen, the other parties to the suit, do anything which would so change the status of the subject-matter as to confer jurisdiction on the court. And the precise question is whether or not under the circumstances, and for the purpose for which it was done, did the fact that the life tenant signed, acknowledged and recorded the deed, without delivery to or acceptance by her children, and without their knowledge or consent, change the actual status of the subject-matter of the suit so as to confer jurisdiction on the court?

NO TITLE PASSED FOR WANT OF DELIVERY AND ACCEPTANCE OF DEED. No deed ever operates to pass title, no matter how formally it may be executed, until it is delivered to and accepted by the grantee, or some person for him, authorized to receive and accept it. Code 1892, section 2434, Hemingway's Code sec. 2267. Bledsoe v. Little, 4 Howard 13; Armstrong v. Stovall, 26 Miss. 275; McGehee v. White, 31 Miss. 41; Bullitt, Miller & Co. v. Taylor, 34 Miss. 708, 69 Am. Dec. 412; New Orleans, etc., R. R. Co. v. Hemphill, 35 Miss. 17; Walker v. Pigott, 1 Miss. Dec. 190; Morgan v. Hazlehurst Lodge, 53 Miss. 665; Hall v. Waddell, 78 Miss. 16; Ligon v. Barton, 88 Miss. 135; Wilson v. Bridgeforth, 108 Miss. 199.

True it is that where a donor executes and places of record a deed of gift, the courts will, in the absence of proof to the contrary, presume a delivery and acceptance, where it appears that the gift was made for the sole benefit of the donee. Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147; 8 R. C. L. 1009, sec. 69. But this is a mere presumption which may in all cases, be overthrown by testimony. Metcalfe v. Brandon, 60 Miss. 685. Nor does the presumption ever arise, unless it affirmatively appears that the gift was made in good faith for the sole benefit of the donee. Life Ins. Co. v. Campbell, 35 Am. Rep. 166; Note 54 L. R. A. 897; Little v. Eaton, 267 Ill. 623, 108 N.E. 727; Bartemeir v. Ins. Co., 130 N.W. 24; Rittenoster v. Brisbane, 35 P. 736.

In the case at bar, no presumption of delivery and acceptance could ever arise from the fact of the execution and record of the deed; first, because five out of seven of the donees were minors and second because it does not appear that the gift was made in good faith for the sole benefit of the donees, but on the contrary that it was made for the sole purpose of procuring a court decree for the sale of their reversionary interest in the land, and thus to deprive them of all interest therein. Besides even if such a presumption might have arisen, the proof to the contrary overthrows it and establishes the want of delivery or acceptance.

So then, it is clear that the deed was never delivered to or accepted by the grantees therein; that it was not made or recorded in good faith for the purpose of conferring any real benefit on the grantees, but on the contrary for the sole purpose of procuring a court decree for the sale of the entire interest in the land and thereby to deprive the grantees of their estate therein. Such being true no title ever passed from the life tenant to the remaindermen, by reason of the making and recording of the deed, and the actual status of the title to the subject-matter of the suit was not changed thereby, in the least.

The LIFE TENANT, INCOMPETENT, WITHOUT CONSENT OF REMAINDERMAN, TO MAKE A CONVEYANCE WHICH WOULD AFFECT THE ESTATE IN REMAINDER. A tenant for life is entitled to the possession and use of the property and to the income and profits thereof, until the life estate is ended; but, like a tenant in common, he owes certain duties to his co-owner the remainderman, and is under certain disabilities touching the estate in remainder. For example while he may use the land he may not impair the estate by committing waste in the cutting of timber, Lorned v. Ogden, 80 Miss. 769; nor can he purchase the land at a tax sale so as to acquire the estate in remainder, Stewart v. Matheny, 66 Miss. 21; Jones v. Merrill, 69 Miss. 747; and if he permit the land to become forfeited for taxes, and fails to redeem, the court will, at the instance of the remainderman, appoint a receiver of the rents for the purpose of redeeming from the tax sale so as to preserve the estate in remainder, Connon v. Barry, 59 Miss. 289; nor will any adverse possession of the land, however long continued, whether by the life tenant or by any one else, in any way affect the right of the remainderman to enter, on the termination of the life estate, Gibson v. Jayne, 37 Miss. 164; Hoskins v. Amens, 78 Miss. 986; Jordan v. Bobbitt, 91 Miss. 1; Clarke v. Foster, 110 Miss. 543, nor can he make any conveyance of the land which will cast a cloud on the title of the remainderman, Hill v. Nash, 73 Miss. 849; nor can he purchase an outstanding title and set it up against the remainderman nor purchase at a foreclosure of a mortgage against the entire estate and acquire a title adverse to the remainderman. 17 R. C. L. 640, sec. 30.

This conclusion, as to the incompetency of the life tenant to execute conveyances which would defeat, impair or in any way affect the remainder, is confirmed by the provisions of section 2444, Code of 1892. This statute has been the law in this state, at least, since the act of June 13, 1822. See Chapter XLII, Hutchison's Code, art. 25, page 609; Code 1857 chapter XXXVI, art. 7, page 307; Code 1871, sec. 2290; Code 1880, section 1199; Code 1892, sec. 2444; Code 1906, sec. 2774, Hemingway's Code, sec. 2278. And the first clause of it has been applied by the court for the protection of the rights of the remaindermen in a number of cases. Barrier v. Young, 96 Miss. 160; Dantzler Lumber Co. v. State, 97 Miss. 356; Anglin v. Broadnax, 97 Miss. 514; Bank v. Cartwright, 84 So. 136. See also Cole v. Grigsby, 35 S.W. 689.

It is therefore clear that every remainder depends on some preceding particular estate immediately preceding it in right of enjoyment, and that a remainder in fee is an estate of inheritance. And so understood it seems clear to us that the statute applies to and protects the rights of all sorts of remaindermen, against any action on the part of the life tenant, which would affect the estate in remainder, unless done with the consent of the remainderman. Hill v. Nash, 73 Miss. 855.

DECREES VOID EVEN IF DEED WAS OPERATIVE BECAUSE THERE WAS NO MERGER. NO MERGER UNLESS SO INTENDED BY THE REMAINDERMEN. 21 C. J. 1034, par. 234; 10 R. C. L., 666, sec. 27; Bank v. Cartwright, 84 So. 138; Dougherty v. Jack, 5 Watts 456, 30 Am. Dec. 335; McLeery v. McLeery, 65 Maine 172, 20 Am. Rep. 683; Jameson v. Hayward, 106 Cal. 682, 46 Am. St. Rep. 268; Wettlaufer v. Ames, 133 Mich. 201, 94 N.W. 950, 103 Am. St. Rep. 449.

In the case at bar none of the remaindermen ever knew of the execution of the deed to them by the life tenant until after her death, and because of that fact there never was, until after this controversy arose, any actual expression by them of an intention as to whether or not a merger should take effect, nor was there any act done by them in reference to the matter from which an intention in that regard might be inferred. And so in view of the principles announced in the foregoing authorities the only way in which the question can now be solved, is to ascertain whether or not under all the facts and circumstances, a merger would be to the interest of the remaindermen.

COMPLAINANTS NOT BARRED OF THEIR REMEDY BY LACHES OR LIMITATIONS. Among many other statutes of limitation pleaded by the defendant is section 3122 of the Code of 1906 (Sec. 2486, Hemingway's Code; Sec. 2760, Code 1892). A complete answer to this plea is that the statute in question has no relation to suits for partition as is held...