Garner v. Garner

• Citation: 117 Miss. 694,78 So. 623
• Decision Date: 20 May 1918
• Docket Number: 20106
• Court: Mississippi Supreme Court
• Parties: GARNER v. GARNER

78 So. 623

117 Miss. 694

GARNER v. GARNER

No. 20106

Supreme Court of Mississippi

May 20, 1918

Division B

APPEAL from the chancery court of Prentiss county, HON. A. J MCINTYRE, Chancellor.

Suit by Clenton Garner against Starlin Garner. From the decree rendered, both parties appeal.

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

Affirmed on direct appeal, and reversed and remanded on cross-appeal.

Cunningham & Cunningham, for appellant.

Cox &amp Cox, for appellee.

OPINION

STEVENS, J.

This controversy grows out of an interchange of deeds by two brothers. In 1892 appellant, Starlin Garner, and his brother, W. C. Garner, were tenants in common of two separate tracts of real estate, one known as the home place and the other as the Blessingham place. The two brothers at that time were single men living under the same roof with their mother and sister and engaged in joint farming operations. W. C. Garner decided to get married, sell out his interest in the joint properties, and move west. Accordingly the two brothers traded one with the other, and the exact contract which was then made is now more or less a subject of dispute. The prominent facts as disclosed by this record are that the two took their old deeds, went before a justice of the peace, and requested the justice of the peace to prepare deeds for their execution. Appellant, Starlin Garner executed and delivered to his brother, W. C. Garner, a warranty deed for the Blessingham place, now the subject of controversy, while W. C. Garner and his bride executed and delivered to Starlin Garner a warranty deed to some two hundred acres of land comprising in the main the home place. Each of these deeds is a straight warranty deed for the entire fee. The deeds do not mention an undivided interest or disclose the fact that the grantor and grantee had been tenants in common. The deed from Starlin Garner to W. C. Garner stated a consideration of one thousand, five hundred dollars in hand paid, while the other deed from W. C. Garner to appellant had a stated consideration of one thousand three hundred dollars. At the time of the execution and delivery of these deeds there was an outstanding mortgage upon the lands conveyed by appellant, Starlin Garner, to his brother; this mortgage having been given by the two brothers to W. A. Abrams as trustee to secure an indebtedness of one thousand, five hundred dollars due Mrs Connie E. Gower. Nothing was said in these deeds about the existence of this mortgage or the payment thereof; the only exception to the warranty being in the following language:

"That the said party of the first part shall forever warrant and defend the title to the said premises unto the party of the second part, his heirs, and assigns, against the claim of all persons lawfully claiming the same or any part thereof, except on account of taxes due from and after the 5th day of February, A. D. 1892."

In April, 1896, there was a large balance due upon the deed of trust and the trustee foreclosed whereupon appellant appeared at the sale and bid off the land in his own name and received the trustee's deed. Complainant now deraigns title through the deed of trust and the trustee's deed aforesaid. In the course of time W. C. Garner died, leaving as his sole heirs his widow and one child Clinton Garner, the appellee in this suit. This bill was filed by Clinton Garner, to recover an undivided one-half interest in the Blessingham place and to require appellant Starlin Garner, to account for rents and profits. The bill was answered and the answer was made a cross-bill, in which it was alleged that there was a mutual mistake in the execution and delivery of the deeds; that the deeds were executed upon printed forms; that the draftsman failed to state the true agreement between the parties; that the real agreement was that W. C. Garner, as grantee in the deed from his brother, Starlin, was to assume the outstanding incumbrance, while Starlin Garner was to pay all other joint indebtedness of the two brothers in their farming operations and in addition thereto was to pay his brother, W. C., two hundred dollars in cash and give him a note for eight hundred dollars. It is alleged in the cross-bill that appellant paid the two hundred dollars in cash and that he executed and delivered to his brother a note in the sum of eight hundred dollars which has been duly paid, but that the deceased brother failed to pay the indebtedness secured by the deed of trust, but, on the contrary, permitted the land to be sold at trustee's sale, and that to protect himself appellant was compelled to buy in the premises at foreclosure sale. Appellant stands upon the trustee's deed, claims the entire fee thereunder, and prays in his cross-bill for a decree confirming his title. The learned chancellor decreed that appellee, Clinton Garner, as an heir of his deceased father, was entitled to recover, but limited this recovery to an undivided one-fourth interest to the lands in controversy, and to an accounting for one-fourth of the rents and profits. From this decree appellant prosecutes a direct appeal, while appellee prosecutes a cross-appeal. There is in the record an opinion of the chancellor dictated at the conclusion of the final hearing, and from this opinion we conclude that the chancellor entertained the view that the defendant, as cross-complainant in the court below, "has a right to reform the deed to show that Starlin Garner deeded, sold, and warranted only his undivided one-half interest in this land," but that the chancellor was "not convinced from the proof, but, on the contrary, rather convinced of the fact that it was not the intention, never entered the minds of either party that this particular clause" to the effect that W. C. Garner, the grantee, was to assume and pay off the outstanding deed of trust, "should be placed in the deed;" the chancellor being of the opinion that parol evidence was not admissible to show any such agreement contrary to the plain import of the...