Conn v. Boutwell

• Decision Date: 08 April 1912
• Docket Number: 15000
• Citation: 101 Miss. 353,58 So. 105
• Court: Mississippi Supreme Court
• Parties: DR. J. P. CONN AND T. J. COLLINS v. ROSA C. BOUTWELL

58 So. 105

101 Miss. 353

DR. J. P. CONN AND T. J. COLLINS v. ROSA C. BOUTWELL

No. 15000

Supreme Court of Mississippi

April 8, 1912

APPEAL from the chancery court of Lawrence county, HON. R. E SHEEHY, Chancellor.

Suit by Mrs. Rosa C. Boutwell against J. P. Conn et al.

From a decree for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Cause reversed.

Jones &amp Tyler and G. Wood Magee, for appellant.

E. L Dent, Hirsh, Dent and Landau, for appellee.

No brief of counsel on either side found in the record.

Argued orally by P. Z. Jones, for appellant, and R. L. Dent, for appellee.

OPINION

MCLEAN, J.

The appellee brought suit in the chancery court against appellants to recover a tract of land, upon the ground that during her infancy the complainant executed a deed of conveyance to Conn, and after having attained majority desired to disaffirm the conveyance. The evidence discloses that the complainant was a minor and a married woman, and that the land conveyed by her to Conn was acquired by her through a series of transactions and embracing an exchange of lands. Sixty-five acres of land, as acquired by complainant came from her father. The sixty-five acre tract complainant exchanged with her brother-in-law, W. L. Lawrence, for another tract consisting of seventy-seven acres; and her husband agreed to pay, and did pay, as the difference in the value of the two tracts, three hundred dollars to W. L. Lawrence. After this, another exchange of land was made, whereby Mrs. Boutwell and her husband exchanged this seventy-seven acre tract with another one of her brothers-in-law, O. J. Gullege, for one hundred and twenty acres of land. This one hundred and twenty acre tract was valued at one thousand dollars, and the conveyance from O. J. Gullege for the land in controversy was made to Mrs. Boutwell and to her husband. The conveyance from Gullege and wife to complainant bore date October 1, 1906, and was made to "Pink Boutwell and wife." The deed from complainant and her husband to Conn was executed on the 5th day of December, 1906, and was signed by both W. P. Boutwell and his wife, Mrs. Rosa C. Boutwell. On the 10th day of November, 1908, J. P. Conn, in consideration of the sum of one thousand dollars cash, conveyed to Thomas J. Collins eighty acres of the land which Conn purchased from Boutwell and wife. The several parties, at the date of their respective purchases, took possession of the land, and Conn and Collins have made valuable improvements upon the property. All of these conveyances were properly acknowledged and recorded in the chancery clerk's office of the county in which the lands were situated. The chancellor decreed that the complainant, Mrs. Boutwell, was the legal and equitable owner of the whole one hundred and twenty acre tract, and canceled and set aside the conveyance made by complainant and her husband to Conn, conveying to him this one hundred and twenty acre tract, and also canceled and set aside the deed from Conn to Collins, conveying to him eighty acres of the one hundred and twenty acre tract.

The complainant's contention is that, while the deed from Gullege and wife was made to her and her husband, yet she was the real owner of the property; that her husband had no interest whatever in the property, as the property was acquired by exchanging her seventy-seven acre tract for this one hundred and twenty acre tract. It is contended on the part of the defendants, appellants here, that Mrs. Boutwell, by her conduct and representations, is estopped from setting up her minority. Upon this proposition the case is a very close one, and we do not think it necessary to express an opinion upon the question, except in so far as to say that we do not think the evidence would justify us in setting aside the findings of fact by the chancellor upon this proposition. We emphasize the fact that the complainant did not have the legal title to the whole one hundred and twenty acre tract; but she only acquired the legal title to an undivided one-half interest in this property by reason of the conveyance from Gullege to complainant and her husband. Section 2770 of the Code of 1906, which has been the law in this state since the adoption of the Code of 1880, is as follows: "All conveyances or devises of land made to two or more persons, or to a husband and wife, shall be construed to create estates in common, and not in joint tenancy or entirety, unless it manifestly appears, from the tenor of the instrument that it was intended to create an estate in joint tenancy or entirety with the right of survivorship; but this provision shall not apply to mortgages or devises, or conveyances made in trust." Prior to 1880 the statutory law in force in this state was the same as the above-quoted statute, except there was omitted from the statute the expression "or to a husband and wife;" in other words, prior to 1880 the statute read as follows: "All conveyances or devises of lands made to two or more persons, shall be construed to create estates in common," etc. Rev. Code 1857, ch. 36, art. 18. The question is presented, for the first time in this court, whether under this statute a conveyance to a husband and wife created an estate in common, or in joint tenancy, or in entirety.

In Hemingway v. Scales, 42 Miss. 1, 97 Am. Dec. 425, 2 Am. Rep. 586, this court, in construing this statute, says that its evident purpose was to abolish the jus accrescendi, the right of survivorship, the distinguishing feature of joint tenancy, so that the estate of a joint tenant, upon his death, might descend to his heirs as in case of tenancy in common. It merely converted a joint tenancy into tenancy in common. It made no change in the law in regard to the estate of husband and wife, which, as was pointed out, is a very different estate from that of joint tenancy; and consequently the court held that the statute did not apply to conveyances to husband and wife, which in legal construction, by reason of the unity of husband and wife, are not strictly joint tenancies, but conveyances to one person, the court saying that husband and wife are seised of the entirety, and the survivor takes the whole, and during their joint lives neither of them can alien so as to bind the other. This principle was reaffirmed in McDuff v. Beauchamp, 50 Miss. 531, wherein it is held that under the statute of 1857 a conveyance to a husband and wife jointly created an estate of entirety. It does not make them joint tenants or tenants in common. Both are seised of the entirety, and have none of the incidents of cotenancy. This decision was rendered in 1874, and when the disabilities of coverture were removed by the legislature in 1880, in order to change the effect of conveyances when made to husband and wife, as announced by this court in the authorities hereinbefore cited, there was inserted in the statute (Rev. Code, 1880, section 1197) for the first time the clause "or to a husband and wife;" the manifest object and purpose of this amendment being to place husband and wife upon the same footing relative to conveyances or devises of lands as other persons.

It therefore follows that the deed by Gullege and wife to Boutwell and his wife created an estate in common. Th...