Cox v. Reed

• Decision Date: 12 March 1917
• Docket Number: 18856
• Citation: 74 So. 330,113 Miss. 488
• Court: Mississippi Supreme Court
• Parties: COX v. REED

74 So. 330

113 Miss. 488

COX v. REED

No. 18856

Supreme Court of Mississippi

March 12, 1917

Division A

APPEAL from the chancery court of Tippah county, HON. J. G. MCGOWEN Chancellor.

Suit by Mrs. Nannie Cox against Chas. M. Reed. From a decree for defendant, complainant appeals.

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

Reversed and remanded.

Spight & Street, for appellant.

We insist that the paper in controversy was in law not a deed but a will, and that the concluding words, "this deed to take and be in effect after the death of myself and wife," show clearly that it was testamentary in its character and not a deed.

In the Alabama case of Traywick v. Davis, 5 So. 83, 85 Ala 343, find this language on page 84: "To have and to hold the same to the said George N. Traywick and Elijah A Traywick forever; but this conveyance is not to take effect and be in force till my death, my purpose and intention being to reserve a life estate for myself in all of said property, and at my death to pass absolutely to said George N. Traywick and Elijah A. Traywick, and to them alone." In that opinion the court further said: "If the words 'this conveyance' is not to take effect and be in force till my death," stood alone they would clearly indicate that no estate or interest should pass upon the execution of the instrument."

In Powers v. Sharling, 64 Kan. 343, the court in delivering the opinion said: "In determining whether an instrument be a deed or a will the question is: Did the maker intend to convey any estate or interest whatever to vest before his death, and upon the execution of the paper, or, on the other hand, did he intend that all the interest and estate should take effect after his death? If the former, it is a deed; if the latter, a will." Cunningham v. Davis, 62 Miss. 366.

Counsel for appellee cites the case of Myers v. Viverett, 70 So. 449, in that case there was a distinct reservation of the life estate to the grantor and for this reason, and this alone, the court held that it was a deed and not a will. It will be further seen by an inspection of the paper there under consideration that there was no such clause as appears in the case at bar, "that this deed shall take and be in effect on and after the death of myself and wife," nor in the latter is there any reservation of title. We have seen from the authorities heretofore cited that these two provisions have an important bearing upon the construction of such an instrument. The courts evidently hold that where there is a deed absolute in form with a reservation of a life estate to the grantor it means that the title vest at once, but possession postponed until the death of the grantor. In testamentary disposition no such reservation is necessary, and the language of the paper here under consideration shows clearly, in the light of the authorities, that it was not to take effect in any respect until the death of the grantor, and is, therefore, a will and not a deed.

We therefore, respectfully, again insist that this court ought to reverse the decree of the lower court and enter judgment in accordance with the prayer of the original bill.

Thos. E. Pegram, for appellee.

The question as to whether certain instruments are to be construed as deeds or wills has been before this court repeatedly. Probably the leading case is that of Wall v. Wall, 30 Miss. 91. The principles laid down in that case have been the law in this state all these years down to the case of Myers v. Viverette, 70 So. 449.

The instrument under consideration is similar to that in the Wall case, supra, in these respects: First, each purports to be a deed of conveyance in consideration of love and affection; and second, each was acknowledged as a deed duly executed and delivered. In the instant case the deed was actually delivered to the grantee while in the Wall case it was recited in the instrument that the signing and sealing and the placing of the instrument among the grantor's papers should be considered as delivery. In the Wall case the gantor reserved the right to revoke the instrument, while in this case the instrument was not revokable. In the Wall case the instrument was to take effect as to the delivery of the property on the death of the grantor, while in this case the instrument was to take effect on the death of the grantor and his wife. There is this other striking similarity between the two cases: In the Wall case the grantor made a deed and likewise made a will disposing of other property, and in this case the grantor made this deed and likewise gave oral instructions as to the manner in which he wanted the personal property disposed of. In the Wall case the court decided that the instrument was a deed. We submit, that in view of the facts that the instrument in question was irrevocable, that it was actually delivered, that the grantor recognized it as a deed, that on the grantee's reaching majority half of the land was assessed to the grantee and the other half to the grantor, and that when part of the land was sold both the grantor and grantee signed the deed and received the purchase price thereof, that the case made out by appellee is a much stronger case than was the Wall case.

The case of Rogers v. Rogers (Miss.), 43 So. 434, is a case in which the phrase "to take effect and be in force after my death," was found in a deed, and the court held that that instrument was a deed and not a will.

It is true that in Cunningham v. Davis, 62 Miss. 368, this court there held that an instrument somewhat in the nature of the one under consideration was a will and not a deed, but it will be noticed that that instrument was never delivered to the grantee, and the grantor, keeping it in his possession, reserved the right to alter, change, or abolish the deed as he so desired during his life, and that the instrument was not to take effect until after the death of the grantor and that of his wife. In that case the decision of the court was based alone upon the recitals of the instrument, to the effect that it was revokable, was to take effect on and after the death of the grantor, and that the grantee was to have only the remainder of the estate after the payment of the debts of the grantor. A review of the case of McDaniel v. Johns, 45 Miss. 682, shows that it follows the rules laid down in the Wall case and is an authority in support of our contentions.

It is perhaps, true that if the chancellor had simply had the instrument alone without any testimony as to the circumstances of its execution, delivery and acknowledgment, without any testimony as to the intention of the grantor in the acts and conduct of the grantor at the...