Greene v. Greene

• Decision Date: 08 November 1926
• Docket Number: 25684
• Citation: 145 Miss. 87,110 So. 218
• Court: Mississippi Supreme Court
• Parties: GREENE et al v. GREENE et al. [*]

110 So. 218

145 Miss. 87

GREENE et al v. GREENE et al. ^[*]

No. 25684

Supreme Court of Mississippi

November 8, 1926

Division B

1. DESCENT AND DISTRIBUTION. Book accounts kept by father against children during minority, without anything to show intention to charge them as advancements, will not be held advancements.

Where a father, in his lifetime, kept books of account against his children during minority and after majority, showing charges and credits without anything on the books to show an intention to charge them as advancements, and no declaration that they were advancements was made as to constitute them a part of the res gestae, such book accounts will not be held to be advancements, but will be treated as other book accounts.

2 INFANTS. Parent and child. Father charging minor children with items on books of account does not create debt against them for things furnished during their minority; infants can be bound only for necessaries; father is personally liable for necessaries of life for infant chidren.

A father charging his minor children with items on his books of account does not create a debt against such children for things furnished during their minority, as infants can only be bound for necessaries; the father, being charged by law with the support of his infant children, is personally bound for the necessities of life.

3. DESCENT AND DISTRIBUTION. To constitute "advancement," donor must irrevocably part with title, which must be vested in donee, in lifetime of donor where no estate which can be alienated is given donee, no advancement is made.

In order to constitute an "advancement," the donor must irrevocably part with his title in the subject-matter and such title must become vested in the donee. And this vesting of title in the donee must take place during the lifetime of the donor. Hence, where no estate which can be a'ienated is given to the donee, no "advancement" can be said to have been made.

4. LIMITATION OF ACTIONS. Three-year statute barring open accounts destroys right as well as remedy; debt of child to father, barred by statute before his death, cannot be set off against child's share in estate; where only remedy is barred by statute of limitations, and debt is unaffected, debt of child to father, although barred by limitations, may be set off against child's share in father's estate (Hemingway's Code, section 2479).

All open accounts are barred by the statute of limitation of three years under section 2479, Hemingway's Code (section 3115, Code 1906), and such statute of limitation destroys the right as well as the remedy. Hence the debts of a child to its father, barred by the statute of limitation before his death, cannot be set off against the child's share in the estate. The doctrine is otherwise where only the remedy is barred, and the debt is unaffected by the statute of limitation.

5 EVIDENCE. Books of account, regularly and correctly kept in due course of business, are admissible in favor of owner of accounts; books of account regularly and correctly kept in due course of business may be sufficient proof of debts, though no one testifies to sale of specific articles.

Books of account, shown by competent testimony to have been regularly and correctly kept in due course of business are admissible in favor of the owner of the accounts, and may be sufficient proof of the debts, although no one testifies as to the sale of the specific articles charged.

6. EQUITY. Answer denying charge of bill sworn to by attorney puts complainant to proof (Hemingway's Code, section 731).

Section 731, Hemingway's Code (section 1011, Code 1906), providing that in all cases where an oath is required in any proceeding such oath may be made by an attorney, an answer denying the charge of the bill sworn to by the attorney puts the complainant to proof.

7. ACCOUNT, ACTION ON. Where bill charged debt of gross amount not itemized, and answer sworn to by defendant's attorney denied debt, and itemized sworn account was not embraced in pleadings, ex parte sworn account was not admissible; ex parte sworn account, after pleadings in which such account was not embraced were at issue, did not impose on defendant duty to file counter affidavit specifying particular items denied (Hemingway's Code, sections 731, 1638).

Where a bill was filed charging a debt of a gross amount, and not itemized, and the answer denies the debt charged in the bill, and the answer is sworn to by the attorney of the defendant, and the pleadings are made up without an itemized sworn account being embraced therein, it is not permissible to offer an ex parte sworn account in evidence to establish the account, nor does such account, if sworn to in such manner, after the pleadings are at issue, impose upon the defendant the duty to file a counter affidavit specifying the particular items denied.

8. DESCENT AND DISTRIBUTION. If evidence sustains allegation that land claimed to be advancement was purchased with mother's money by father, who intended to give grantees mother's equity, it should not be treated as advancement; if land was purchased by father with his own money, and deeded to children, it will be presumed advancement, in absence of evidence to contrary.

Where a bill charges certain land was deeded by an ancestor to some of his heirs as an advancement, and the answer denies such was an advancement, but sets forth that the land so deeded was purchased by their father with money belonging to their mother, and that in deeding the land to them it was the father's intention to give them the benefit of the mother's equity in the land, the court should hear the evidence in reference thereto, and, if the evidence sustains such contention, said land should not be treated as an advancement. If the land was purchased by the father with his own money, it will be presumed to be an advancement, in the absence of testimony to prove the contrary.

9. DESCENT AND DISTRIBUTION. Land given by father to son as advancement should be valued for partition as of date of gift.

In valuing land given by a father to his son as an advancement for the purpose of partition, the land should be valued as of the date of the gift when possession was taken, and not by the date of a deed made subsequent to the entering into possession.

HON. N. R. SLEDGE, Chancellor.

APPEAL from chancery court of Marshall county, HON. N. R. SLEDGE, Chancellor.

Suit by Mrs. Kate M. Greene and others against C. C. Greene and others for partition, and to set apart a homestead. From an adverse decree, C. C. Greene and others appeal. Reversed and remanded.

Case reversed and remanded.

Lester G. Fant, for appellants.

I. The burden of proof is on the complainants to prove every material point that is controverted. Porter v. Still, 63 Miss. 356; Hyle v. Culner, 1 How. 121; Winn v. Skipworth, 14 S. & M. 14.

II. An advancement is a provision by a parent, made to and accepted by a child, out of his estate, either in money or property, during his lifetime, over and above the obligation of the parent for maintenance and education. 18 C. J., page 911; Garrett v. Calvin, 653, 654, and 659; Miller's Appeal, 40 Pa. St. 57, 80 Am. Dec. 555; Kemp v. Turman, 104 Miss. 501.

III. An open account in Mississippi is barred in three years. Hemingway's Code, section 2463. The period of limitation of an account bars not only the remedy, but the very debt itself. Hemingway's Code, section 2479; Central Trust Co. v. Meridian Light & Ry. Co., 106 Miss. 431; Rogers v. Rosenstock, 117 Miss. 144; Trowbridge v. Schmidt, 82 Miss. 475; Cox v. American Co., 88 Miss. 88. A donor cannot convert a gift or debt into an advancement unless the donee or debtor consents thereto. 1 R. C. L., page 673; Crosby v. Covington, 24 Miss. 619; Note in L. R. A. 1918 C 619.

IV. The relation of debtor and creditor is a contractual one, involving the meeting of two minds capable of contracting. 18 C. J., pages 938 and 924.

V. A minor cannot make a valid contract. Ferguson v. Bobo, 54 Miss. 121; Hudson v. Strickland, 58 Miss. 186.

VI. The decree rendered by the special chancellor was interlocutory and subject to revision by the regular chancellor when he took charge of the case. Sweatman v. Dean, 85 Miss. 641; Smith v. Slanvil, 93 Miss. 69; Shorter v. Lesser, 98 Miss. 706; Cox v. Kyle, 75 Miss. 657; Gallegar v. Martin, 73 Miss. 695.

VII. An affidavit to an account as provided in section 1638, Hemingway's Code, has no application in a chancery suit, but is confined in its application to a suit at law. G. & S. I. R. R. Co. v. Wells, Lbr. Co., 111 Miss. 768; I. C. R. R. Co. v. Andrews, 61 Miss. 474; American S. Co. v. U.S. 76 Miss. 289; Adams v. Fidelity Co., 94 Miss. 433.

VIII. Before a master or commissioner's report has the effect of a jury there must be competent evidence to support it. Hines v. Naval Stores, 101 Miss. 802.

IX. Finding of a chancellor not supported by competent evidence will be set aside. Gillis v. Smith, 114 Miss. 665; Northern Ass'n v. Newman & Lbr. Co., 105 Miss. 688.

X. An affidavit by an attorney shall have the same effect as that made by the party. Hemingway's Code, section 731.

XI. Statements made by M. A. Greene are not admissible in evidence. Moore v. Parks, 122 Miss. 332; Sheehan v. Kearney, 82 Miss. 694; 3 Wigmore on Evidence sections 1734 and 1737; 3 Jones Commentaries on Evidence, sections 483-84; 1 Alexander on Wills, section 360-62; Shaler v. Bumstead, 99 Mass. 112-20; Boyle v. Meeker, 28 N.J.L. 283 et seq.; Waterman v. Whitney 11 N.Y. 157, 62 Am. Dec. 71; Throckmorton v. Holt, 80 U.S. 552, 45 L.Ed. 663; Tucker v. Whitehead, 59 Miss. 594; Miller v. Miller, 96 Miss. 526; Miller's Appeal, 80 Am. Dec. 555; Hatch v. Straight, 8 Am. Dec. 673; Smith v. Strahan, 17 Tex. 314...