Coney v. Coney

• Citation: 249 Miss. 561,163 So.2d 692
• Decision Date: 04 May 1964
• Docket Number: No. 42904,42904
• Parties: Early CONEY and James Coney v. Emma CONEY et al.
• Court: Mississippi Supreme Court

Page 692

163 So.2d 692

249 Miss. 561

Early CONEY and James Coney v. Emma CONEY et al.

No. 42904.

Supreme Court of Mississippi.

May 4, 1964.

Roach & Roach, McComb, Robert S. Reeves, Magnolia, for appellant.

O. W. Phillips, Magnolia, for appellee.

RODGERS, Justice:

The appellants filed a bill of complaint in the Chancery Court of Pike County, Mississippi, to establish their claim to 340 acres of land deeded by them and their brothers, to another brother, M. M. Coney. It is contended that the title to the property was taken in his name and held for the use and benefit of the Coney Brothers, including the appellants, but M. M. Coney, in violation of his trust relationship to his brothers and their heirs, deeded the property to his children just a few days before his death, and that therefore a resulting trust occurred in favor of the claimants to the real estate, entrusted to M. M. Coney.

The claim of the appellants grew out of the following facts: John C. Coney and his six sons, John L. Coney; U. S. Coney; M. M. (Myrt) Coney; James Coney; Van Coney; and Early Coney, purchased 340 acres of land from V. C. Dickey on March 17, 1919. They gave a trust deed on the property, to secure the purchase money, to F. W. Reid, dated March 17, 1919, for the sum of $6,200. Some of the brothers owned separate homes and other land, and their individual real property was included as security for the payment of the trust deed due to F. W. Reid. Thereafter, on December 15, 1921, the brothers deeded this property to one of the brothers, M. M. (Myrt) Coney. On February 1, 1922, M. M. Coney and his wife, Myrtis Coney (first wife) gave a trust deed to the Federal Land Bank of New Orleans on the property here involved and paid the mortgage due to F. W. Reid. Thereafter, on December 31, 1958, M. M. Coney and wife, Emma (second wife), deeded to U. S. Coney a part of this property (60 acres), reserving a one-half interest in the oil, gas and minerals in the land. The land records of Pike County show that M. M. Coney and his wife, Emma, deeded their land to William B. Nelson on September 6, 1932. The latter deed was cancelled as a mortgage by the Chancery Court of Pike County, Mississippi, on April 21, 1952. The decree of that court was affirmed by this Court in the case of Nelson v. Coney, et ux, 224 Miss. 485, 80 So. 2d 476, in 1955. Oil, gas and mineral leases were given on the property and were finally purchased by the Pan American Oil Company, a corporation. Since the final decree was entered in this case in favor of the Oil Company, their interest is no longer at issue here.

M. M. Coney did about the 5th day of March 1960. A few days before his death, he, and his wife, Emma, deeded the described property to his children.

Appellants contend that M. M. Coney was the bookkeeper and the 'leader' of the partnership and he got them to make a deed to him by telling them it was necessary to put the title to the property in his name and that the brothers deeded the property here involved to him, for the purpose of procuring a loan from the Federal Land Bank of New Orleans, Luisiana, to pay the trust deed due F. W. Reid. They claim that they continued to operate this property after the deed had been put in the name of M. M. Coney; that they had an account at Lampton-Reid's Store in the name of 'Coney Brothers', and that they operated the place by drawing on this credit. They contend they worked the property, raised corn, cotton and finally sugar cane, in order to pay the loan due the Federal Land Bank. It is charged that during the 'Depression' Prof. William B. Nelson took over the property after it had been sold by the Federal Land Bank and that the Brothers all helped pay the debt until finally the timber was sold on the property and the Bank was paid in full the balance of the money divided and the property returned to the name of M. M. Coney by decree of the court.

On the other hand, the wife and children of M. M. Coney contend that all of the Coney Brothers left and had nothing more to do with the property or the debt on the property after it was deeded to M. M. Coney, except U. S. Coney, who got sixty acres of the land. They point out that the homes of the Brothers were tied up in the trust deed to F. W. Reid so that the payment of this trust deed released their homes and thereafter the Brothers 'dropped out.' Some of them got in trouble and left, and others died.

The testimony is conflicting. U. S. and Early Coney, Brothers of the deceased M. M. Coney, testified for the complainants, and the wife and children of M. M. Coney testified to establish their defense. The complainants attempted to show by several witnesses that M. M. Coney said his Brothers had an interest in the property and that he recognized their interest in the 'Big Place', but this evidence was stricken by the chancellor. The complainants objected to the testimony of the wife and children of M. M. Coney, but the court overruled this objection. The chancellor entered a decree in favor of the defendants, dismissing the bill of complaint, and from this decree the case has been appealed to this Court.

A painstaking examination of the record, the briefs, and our research has convinced us that the chancellor reached the proper determination of this case by finding for the defendants in dismissing the complainants cause of action, and enjoining the complainants from further proceedings against defendants. Our reasons for this conclusion are summarized in the following paragraphs.

The testimony of the many witnesses are in hopeless conflict. The witnesses for the complainants testified largely in support of the complainants' theory of the case, that the property was put in the name of M. M. (Myrt) Coney in order to obtain a loan and that the 'Coney Brothers' worked the property and paid the debt due for the purchase of the property. U. S. Coney, however, admitted that had it not been for 'Professor Nelson, M. M. Coney and U. S. Coney' the property would have been lost, andhe also admitted that he obtained his sixty acres through M. M. Coney and that he did not consider it necessary for the other Brothers to sign his deed. The testimony for the defendants by their witnesses supports the defendants' theory that the 'Coney Brothers' did not claim an interest in the 'Big Place' after it was deeded to M. M. Coney, and that he paid it out with the help of his family, Prof. Nelson and U. S. Coney.

The record further discloses that the complainants, appellants here, made no effort to prevent the transfer of the land at the time it was conveyed to William B. Nelson, September 6, 1932, nor at the time when M. M. Coney filed a bill to cancel the deed to Nelson in 1955. In that suit M. M. Coney claimed to be the owner of the property. Moreover, some of the 'Coney Brothers' actually testified as witnesses upon the trial in that cause of action.

The chancellor accepted the testimony and theory of the defendants and we cannot say in so doing he was manifestly wrong. He expressly stated that he was not impressed with the testimony of the complainants, and it seems to us that had the chancellor done otherwise, he would have necessarily overlooked the fact that the title to this property had been in M. M. Coney and in Prof. Nelson for approximately thirty-seven years, and during this time the original partners had 'dropped out', had scattered, and some had died, and none had shown any interest in the property, with the exception of U. S. Coney, who obtained his title from M. M. Coney to a part of the land.

As a general rule, when a person undertakes, by verbal testimony, to show a claim to real estate growing out of an alleged resulting trust, in opposition to his written deed, he must establish the resulting trust by clear, unequivocal, cogent and convincing evidence. Laughlin v. Mitchell, 121 U.S. 411, 7 S.Ct. 923, 30 L.Ed. 987; Stricker v. Morgan, 5 Cir., 268 F.2d 882, cert. denied 361 U.S. 963, 80 S.Ct. 592, 4 L.Ed.2d 544; Dismukes v. Terry, 1 Walker 197 (Miss.); Logan v. Johnson, 72 Miss. 185, 16 So. 231; Bush v. Bush, 134 Miss. 523, 99 So. 151; Saulsberry v. Saulsberry, 232 Miss. 820, 100 So.2d 593; Green v. Frazier, 242 Miss. 315, 135 So.2d 399; 54 Am.Jur., Trusts, Sec. 602, p. 465, Sec. 618, p. 477. Moreover, such verbal testimony should be received with caution. Conner v. Conner, 238 Miss. 471, 119 So.2d 240; 54 Am.Jur., Trusts, Sec. 620, p. 478; Anno. 23 A.L.R. 1536. This is especially true where there has been a great delay in asserting the claim, because records and deeds are not to be easily overturned. 54 Am.Jur., Trusts, Sec. 581, p. 449; Streeter v. Gamble, 298 Ill. 332, 131 N.E. 589, 23 A.L.R. 1485. It has been said that 'It is clear that something more than mere preponderance of the evidence is required to overcome the presumption in favor of the holder of the legal title or the person having apparent ownership thereof, and to establish a trust by parol.' 54 Am.Jur., Trusts, Sec. 621, p. 480.

The facts in this case are somewhat similar to the facts shown in Thames v. Holcomb, 230 Miss. 387, 92 So.2d 548, except in Thames there was an expressed trust to do an act at a definite time, and having failed to so do, the trust was barred under Sec. 746, Miss.Code 1942. In the instant case the testimony did not establish a definite time when it was contended the property was to be reconveyed, the chancellor obviously considered the fact that the property was conveyed to William B. Nelson in 1932, and that a part of the property was conveyed to U. S. Coney on December 31, 1958, and that such conveyances indicated that M. M. Coney claimed the property as his own. We do not deem it necessary to pass upon the assertion that the claim of the appellants is barred by the statute of limitations in the instant case, but point out in passing that this Court, quoting from 34 Am.Jur., p. 143, Limitation of Actions, Par. 17, said: 'It is generally held that no repudiation...