Conerly v. Lewis, 41268

• Decision Date: 01 February 1960
• Docket Number: No. 41268,41268
• Citation: 238 Miss. 68,117 So.2d 460
• Parties: P. T. CONERLY v. Alfred LEWIS et al.
• Court: Mississippi Supreme Court

Page 460

117 So.2d 460

238 Miss. 68

P. T. CONERLY v. Alfred LEWIS et al.

No. 41268.

Supreme Court of Mississippi.

Feb. 1, 1960.

B. D. Statham, Magnolia, for appellant.

O. W. Phillips, Magnolia, for appellee.

KYLE, Justice.

This case is before us on appeal by P. T. Cornerly, from a decree of the Chancery Court of Walthall County dismissing with prejudice the bill of complaint filed by Wilmer Lewis and others, complainants in the court below, against Alfred Lewis and others as defendants, seeking the cancellation of six purported deeds of conveyance executed by Aaron Lewis, Sr., now deceased bearing date January 30, 1945, and conveying to the grantees therein named certain lands owned by the grantor, and asking for a partition of said lands in kind or for a sale of said lands for a division of proceeds among the heirs of the grantor according to their respective interests.

The record shows that the said Aaron Lewis, Sr., died intestate on December 22, 1945; and that he left surviving him, as his only heirs eight children and lineal descendants of three other children who had predeceased him. The children who were living at the time of his death were Alfred Lewis, Aaron Lewis, Jr., Willie Lewis, Wilmer Lewis, Mary Bell Lewis Railford, Vinetta Lewis Holmes, Rebecca Lewis McGowan, and Elgenia Lewis. The three children, who had predeceased him leaving bodily issue, were Daniel Lewis, the grantee in one of the above mentioned deeds, who died intestate after the date of the execution of said deed, leaving as his only heirs seven children; and Jacob Lewis, who died intestate prior to the death of his father, leaving as his only heir one child, Ernestine Lewis Jones; and Rufus Lewis, who died intestate prior to the death of his father, leaving as his heirs eight children.

The bill of complaint in this cause was filed by Wilmer Lewis, Mary Bell Lewis Raiford, Elgenia Lewis, Alberta Lewis Williams, and Cephus Lewis and Rutha Lee Lewis, minors, by Mary Bell Lewis Raiford, next friend, on April 21, 1956. Alfred Lewis, Aaron Lewis, Jr., Willie Lewis, Vinetta Lewis Holmes, Rebecca Lewis McGowan, Ernestine Lewis Jones, and all of the remaining heirs of Daniel Lewis and Rufus Lewis, who would have had an interest in the lands if the deeds were set aside and cancelled, were made parties defendant.

In their bill of complaint the complainants alleged and the record shows that Aaron Lewis, Sr., during his lifetime, owned 350 acres of land in Walthall County, which consisted of an 80-acre tract of land described as the SW 1/4 of the NW 1/4 and the SE 1/4 of the NW 1/4 of Section 15, in Township 2, North, Range 11 East, on which the family dwelling house was located, and 270 acres of land in Section 8, in said township and range; and that on January 50, 1945, Aaron Lewis, Sr., executed six deeds conveying said lands in separate parcels to certain of his children and grandchildren, as follows: In two of said deeds the grantor conveyed to his son, Alfred Lewis, the 40-acre tract of land described as the Southwest Quarter of the Northwest Quarter of Section 15, and 20 acres of land situated in said Section 8; and to his son, Willie Lewis, the 40-acre tract described as the Southeast Quarter of the Northwest Quarter of said Section 15, and 20 acres of land in Section 8. In the other deeds the grantor conveyed to each of his sons, Daniel Lewis and Aaron Lewis, Jr., 40 acres of land in Section 8, and to the children of his deceased son, Rufus Lewis, as tenants in common, 40 acres of land in Section 8; and to his four daughters, Mary Bell Lewis Railford, Vinetta Lewis Holmes, Rebecca Lewis McGowan, Elgenia Lewis, as tenants in common, the remaining 110 acres of land in Section 8. In each of said deeds the grantor reserved unto himself a life estate in the lands conveyed.

In their bill of complaint the complainants further alleged that the said Aaron Lewis, Sr., was mentally incompetent and not capable of executing a valid deed at the time the above mentioned deeds were executed, and that said deeds should be cancelled as clouds upon the title of the heirs of the grantor, who were the owners of said lands in fee simple. The complainants further alleged that only small portions of said lands were cultivatable; that there were only meager improvements on said lands; and that said lands were not susceptible of a fair and equitable division or partition in kind, and that a sale of said lands would better promote the interest of all parties. The complainants therefore prayed that upon the final hearing of the cause a decree be entered cancelling the above mentioned deeds as clouds on the title of the heirs of the said Aaron Lewis, Sr., and ordering that said lands be partitioned among the several cotenants according to their respective interests, or that said lands be sold for a division of the proceeds among the several cotenants.

Alfred Lewis and several other defendants filed an answer to said bill of complaint, and in their answer denied that the complainants and the defendants were the owners of the 350 acres of land in fee simple. The defendants in their answer denied that Aaron Lewis was mentally incompetent or incapable of executing valid deeds of conveyance at the time said deeds were executed; and the defendants denied that the complainants and the remaining heirs of Aaron Lewis, Sr., were the owners of any interest in the lands conveyed to said defendants in said deeds dated January 30, 1945; and the defendants denied that the complainants were entitled to a partition of said lands as prayed for in their bill of complaint. The defendants in their answer alleged specifically, as additional matters of defense, that the said Alfred Lewis and Daniel Lewis, immediately after the death of Aaron Lewis, Sr., on December 22, 1945, entered into possession of the lands conveyed to them and had remained in possession thereof continuously since that time, claiming said lands as their own; thatsaid possession had been open, notorious, hostile, adverse, continuous and exclusive possession of said lands for a period of more than ten years, during which time the defendants had cultivated said lands, sold timber therefrom, and had exercised all other acts of ownership; and that the complainants were barred from asserting, or attempting to assert any right, title, interest or claim in the lands described in the deeds of conveyance to the said Alfred Lewis and the said Daniel Lewis.

After the filing of the defendants' answer and prior to the date of the hearing of the case on its merits, the above named Wilmer Lewis, Mary Bell Lewis Railford, Elgenia Lewis, Vinetta Lewis Holmes, Aaron Lewis, Jr., Willie Lewis and Ernestine Lewis Jones executed quitclaim deeds conveying their interests in said lands to P. T. Conerly; and P. T. Conerly filed a petition to intervene in said cause as a party complainant. A decree was therefore entered on November 21, 1957, making the said P. T. Conerly a party complainant.

The cause was heard during the November 1957 term of the court upon the bill of complaint and amendments thereto, the answer of the defendants and amendments thereto and other pleadings, and oral and documentary proof. Six witnesses testified for the complainants, and eight witnesses testified for the defendants. At the conclusion of the hearing the chancellor found that, at the time of the execution of the above mentioned deeds, Aaron Lewis, Sr., was mentally competent and fully capable of knowing and understanding the nature of his acts; that he was not mentally incapacitated in any manner when said deeds were executed; and that said deeds were legal, valid and binding upon all of the parties; and the chancellor entered a decree dismissing with prejudice the bill of complaint. From that decree the complainant, P. T. Conerly, has prosecuted this appeal.

The appellant assigns three errors as grounds for reversal of the decree of the lower court:

1. That the evidence is conclusive that Aaron Lewis, Sr., was not mentally competent to execute deeds of conveyance on January 30, 1945, and that the decree declaring the same to be valid is against the overwhelming weight of the evidence.

2. That the court erred in permitting Dr. J. J. Pittman to decline to testify; and

3. That the court erred in refusing to admit as evidence in the case a record of the testimony of Dr. Pittman taken during the trial of the case of Hunt et al. v. Lewis et al., Cause No. 2803, as shown on the Chancery Court Docket of Walthall County, which was affirmed by this Court on appeal, as shown in 219 Miss. 812, 70 So.2d 13.

It is not necessary that we review in detail the testimony of the 14 witnesses who testified in the case. We think there was ample evidence in the record to support the finding of the chancellor that Aaron Lewis, Sr., the grantor in the several deeds, at the time he executed the same, was mentally competent to act for himself and was fully capable of knowing and understanding the nature of the transactions, and that the deeds were valid and binding upon all of the parties.

It is true that the testimony of the complainants' witnesses shows that Aaron Lewis, Sr., was more than 90 years of age at the time the deeds were executed; that he had suffered during a period of several years from arteriosclerosis, cardiac insufficiency, swelling in the feet and legs, and other ailments which frequently manifest themselves in persons of such advanced age; that he was feeble and unable to get in and out of the house without help and was at times confined to his bed; and that at times he paid little attention to those who tried to engage him in conversation. But there is ample evidence in the record to support the chancellor's finding that he was not mentally incompetent at the time the deeds were executed. The testimony of the defendants' witnesses which the chancellor accepted was the testimony of disinterested witnesses who were present at the time...