Caulk v. Burt

• Decision Date: 28 May 1917
• Docket Number: 18595
• Citation: 75 So. 369,114 Miss. 487
• Court: Mississippi Supreme Court
• Parties: CAULK v. BURT

75 So. 369

114 Miss. 487

CAULK v. BURT

No. 18595

Supreme Court of Mississippi

May 28, 1917

APPEAL from the chancery court of Bolivar county, HON. JOE MAY Chancellor.

On suggestion of error. For former opinion see 112 Miss. 660.

Reversed and remanded.

Tim E Cooper, B. J. Semmes and Somerville & Somerville, for appellant.

Fontaine Jones, and Green & Green, for appellee.

COOK P. J. ETHRIDGE, J. dissenting.

OPINION

COOK, P. J.

This case was affirmed by Division B. of this court some time since, and the opinion then rendered may be found reported in 73 So. 618. It is again before the court upon suggestion of error, and there being a division of opinion between the judges, the case is now considered by the court as a whole. A careful consideration of the record has convinced a majority of the court that Division B erred in its former disposition of this appeal.

The record discloses that appellant was an aged inebriate, a pensioner upon the State, and that, by the conveyance he seeks to have canceled, he conveyed to appellee his entire patrimony for a grossly inadequate consideration. The appellee, on the other hand, was a much younger man, and had a decided advantage of appellant.

Two wills figured in the trade, one of which appellant never saw, and both of which were in the possession of appellee. We do not think it is important whether or not appellee was a trustee of the two wills. He was, without question, the custodian of the wills; he had employed lawyers, and he knew exactly what he wanted, and in the end obtained the property at a grossly inadequate price. While it is said that appellant also took legal advice before he executed the conveyances, we believe that the record shows that he did not.

On the side of the appellant in this case, we find an aged inebriate, a pensioner on the charities of the public, threatened with the loss of his annuity, followed by a consequent drouth. On the other side, we see a shrewd business man, in the possession of all his faculties, also the self-elected custodian of the two wills so important to appellant, and fortified by expert advice--in a word, appellee had the whip hand and used it. It is quite clear that Burt was the mental superior of Caulk; that he had every advantage and exact knowledge of the true state of affairs, and taking the record as a whole there can be no doubt that Caulk was in no condition to take care of himself. The gross inadequacy of consideration alone might not justify a cancellation of the conveyances, but this in connection with Caulk's forlorn situation--his pauperism, his age, and his thirst for alcoholic stimulants--convinces us that Burt has gained an inequitable advantage, not to be approved by courts of justice.

Reversed and remanded.

DISSENT BY: ETHRIDGE

ETHRIDGE J. (dissenting).

I think the facts stated in the former opinion (73 So. 618) are as strongly stated...