Garner v. Townes

• Decision Date: 14 April 1924
• Docket Number: 23817
• Citation: 134 Miss. 791,100 So. 20
• Court: Mississippi Supreme Court
• Parties: GARNER v. TOWNES. [*]

100 So. 20

134 Miss. 791

GARNER v. TOWNES. ^[*]

No. 23817

Supreme Court of Mississippi

April 14, 1924

Division A

Suggestion of Error Overruled May 19, 1924.

APPEAL from chancery court of Tallahatchie county, HON. C. L. LOMAX Chancellor.

Suit by J. K. Townes against Elizabeth Garner, a minor. From a decree for plaintiff, defendant appeals. Suggestion of error sustained in part and cause remanded.

Affirmed. Motion sustained in part and cause remanded.

Hays Stingily & Whitten, for appellant.

During the year 1892 J. K. Townes insured his life for five thousand dollars in the Equitable Life Assurance Society. The policy matured during the year 1912. During the year 1909 the insured transferred to his father, Jas. A. Townes, all his right, title and interest in the policy by a written instrument duly acknowledged. On the 26th day of March, 1913, the said Jas. A. Townes assigned all of his right, title and interest in the policy to his granddaughter, Elizabeth Garner, by an instrument in writing, duly acknowledged. After he had thus formally executed this assignment he delivered the policy, assigned as aforesaid, to the mother of Elizabeth for the use and benefit of his infant granddaughter, Elizabeth. Garner. During the year 1914 Jas. A. Townes died. His estate was duly administered and his property divided between his wife and children. The years rolled by until November 6, 1922, when there was filed this bill alleging that the contract between J. K. Townes and his father, Jas. A. Townes was not a contract of absolute and unconditional sale, but that in fact the contract was a contract hypothecating the policy with his father, Jas. A. Townes, to secure an indebtedness due by him to the latter, and that this indebtedness had been paid by him during the fall of 1913.

In the trial of the cause, over the objection of the defendant, Elizabeth Garner, the complainant was allowed to give his parol testimony to vary and change this contract he made with his father thirteen years before, and to establish another contract than the contract which his father at that time had made. On this oral testimony, the court's decree directs this minor defendant to surrender and deliver over to the complainant the policy involved.

I. The court erred in permitting complainant, Townes, to testify as to the transaction with his father, who died some five years thereafter and some eight years before the filing of this suit. The complainant must prove under any view of the case, that his father did not own the policy absolutely and unconditionally under the 1909 assignment and delivery made by the complainant during his father's lifetime. To make this proof, the complainant offered himself as a witness, and, notwithstanding the transaction is a transaction between the complainant and his father during the lifetime of the latter, the father at the time of this suit being dead, testified that his contract was in fact a contract, under the terms of which the policy, instead of being sold absolutely to his father, as the instrument witnesses, was hypothecated to secure the payment of an indebtedness then owing his father. That part of the common law which, notwithstanding statutory modifications, still forbids the courts to hear the testimony of an interested party, has been so thoroughly considered by the court that when one enters upon a trial of a case he is surprised to find the testimony of one of the parties offered when "death has sealed the lips of the other party to the transaction."

It is only in event the complainant overturned this 1909 instrument, which evidenced an absolute sale, that it is material what was done in the 1913 transaction, when complainant alleges he paid J. A. Townes the sum which he says the policy was pledged to secure. Since the lips of Jas. A. Townes are sealed by death, the law seals the lips of the other party to that transaction, under every possible view of the controversy. Lamar v. Williams, 39 Miss. 342, at page 447; Jackson v. Smith, 68 Miss. 53; Griffin v. Lower, 37 Miss. 458; Jacks v. Bridewell, 51 Miss. 881, at page 888; Whitehead v. Kirk, 104 Miss. 776, at page 820.

II. The complainant alleges in his bill that the contract which he executed is not in fact the contract intended to be made by the parties. If that be true, a cause of action accrued to the complainant at the very instant this policy was erroneously delivered to his father, whether through a mistake or some affirmative fraud. The statute begins to run from the day suit might have been brought. Benefit Association v. Bank, 99 Miss. 610. There can be no question of concealed fraud here. Magee v. Keegan, 35 Miss. 244.

III. There is another assignment of error, that is, that the complainant was allowed to vary a written contract by parol testimony. Section 4783, Code of 1906, section 2137, Hemingway's Code, provides that a conveyance or other writing absolute on its face, where the maker parts with possession of the property conveyed by it, shall not be proved at the instance of any of the parties, by parol evidence, to be a mortgage only, unless fraud in its procurement be the issue to be tried. The common law applying to the case, of course, is precisely to the same effect.

Hays, Stingily & Whitten, for appellant in response to questions from the court.

Was any statute of limitations pleaded by appellants, and, if so, what statute? Section 334, Hemingway's Code, section 574, Code of 1906, dispenses with any necessity for any answer on the part of a minor. In Grant's Heirs v. Craigmiles, 1 Bill. (Ky.) 203, the court applied for the benefit of the infant, the statute of frauds, to a bill for specific performance of a parol contract of land, although the statute was not insisted upon by the guardian. "It is the duty of the chancellor to protect the rights of minors, whether the proper defense be made or not." Price v. Crone, 44 Miss. 556, at page 575.

"Under prior decisions of our court and under well-recognized procedure in equity, it is the duty of the court to safeguard the interest of minor defendants, to make valuable elections for them, etc., and to see generally that their interests are fully protected." Price v. Crone, 44 Miss. 571; John v. Smith, 56 Miss. 724; Miller v. Palmer, 55 Miss. 323; Northern v. Scruggs, 118 Miss. 353, at page 271; see, also, Neblett v. Neblett, 70 Miss. 572, at page 576; Jones v. Gurlie, 61 Miss. 428. The appellant in her said answer pleads a conversion.

In the concluding paragraph of her answer, she invokes the statute of limitations. Section 2461, Hemingway's Code; section 3097, Code of 1906. "But when goods are tortiously taken, the statute begins to run from the taking, for the tortious act itself is a conversion. So an unlawful disposition of property, rightfully in possession, is a conversion, and the statute begins to run from the time of first disposition, and it is immaterial whether the plaintiff knew about it or not, if no fraud was practiced to prevent the knowledge. Johnson v. White, 13 S. & M. 584. The complainant knew he had executed an absolute assignment and delivered the policy to his father thereunder. He knew his father had not reassigned the policy to him. He knew that a reassignment in writing was necessary. No fraud is charged in the bill. At best he could excuse himself only on the ground that he had neglected the matter. From this date a period of eleven years elapsed before suit was brought. One of the best cases in the books on laches and stale demands is Buckner v. Calcote, 28 Miss. 432, and particularly at page 596. The statute of limitations begins to run whenever the cause of action accrues. Johnson v. Pyles, 11 S. & M. 189; Central Trust Company v. Light & Railway Company, 106 Miss. 431.

Gardner & Gardner, for appellee.

The proposition that appellee was disqualified to testify, by reason of our statute, which makes incompetent the testimony of a claimant against the estate of a deceased person, has no bearing whatever in this case. Section 1577 of Hemingway's Code, deals with the incompetency of a claimant against the estate of a deceased person. This statute has been construed in many cases in this state, and the uniform holding has been, that where the estate of a deceased person is not directly involved, that the witness is not disqualified because of incompetency. In other words, the rule is, that in order to disqualify a witness on the ground of incompetency, the proof must show that the estate of the deceased person is directly affected by his testimony. The four cases relied upon by counsel for appellant are absolutely without any merit so far as affecting appellee's right in this case, because this is not a controversy between appellee and the estate of J. A. Townes, or any part of it.

We call your attention now to just a few cases which hold that where the estate of a deceased person is not directly connected with the litigation, the witness is a competent person to testify. Love v. Stone, 56 Miss. 449; Faler v Jordan, 44 Miss. 286; Lamar v. Williams, Adm'r., 39 Miss. 347, and 37 Miss. 458; Combs v. Black, 62 Miss. 831; Cole v. Gardner, 67 Miss. 670. One of the strongest cases we find bearing on this case is Fennell, Adm'r., v. McGowan, 58 Miss. 261. See, also, Gordon et al. v. McEachin, 57 Miss. 834; Cole v. Gardner, 67 Miss. 670; Horne v. Nugent, et al., 74 Miss. 102; Jones v. Bank, 71 Miss. 1023. Then again, "To exclude a party as a witness to prove his own claim or right, it must be against the estate of a deceased person in the suit in which he proposes to testify." Jackson v. Smith, 68 Miss, 53; Cole v. Gardner, 67 Miss. 670; Wood v. Stafford, et al., 50 Miss. 370. It is not a valid objection that the testimony of the witness will remotely and...