Grubbs v. Everett, 41164

• Decision Date: 11 May 1959
• Docket Number: No. 41164,41164
• Citation: 236 Miss. 698,111 So.2d 923
• Parties: J. C. GRUBBS et ux. v. I. G. EVERETT et ux.
• Court: Mississippi Supreme Court

Page 923

111 So.2d 923

236 Miss. 698

J. C. GRUBBS et ux. v. I. G. EVERETT et ux.

No. 41164.

Supreme Court of Mississippi.

May 11, 1959.

George B. Grubbs, Mendenhall, for appellants.

James B. Sykes, Mendenhall, Satterfield, Shell, Williams & Buford, Jackson, for appellees.

McGEHEE, Chief Justice.

As stated by the appellants in their brief, 'the sole issue presented to the lower court was the delivery vel non of a warranty deed executed by Mrs. Betty Reed Everett on the 19th day of December, 1939, wherein these lands in controversy were sold and conveyed to Mrs. Cola Grubbs, Mrs. Marie Williamson and Miss Iona Reed.'

A photographic copy of the original of the deed in question is made a part of the record before us and discloses that the deed was in fact signed and acknowledged by Mrs. Betty Reed Everett on the said 19th day of December, 1939, but was not filed for record until December 22, 1955, which was after the death of the grantor.

It was stipulated by the parties that this deed was 'executed' by the grantor on the said 19th day of December, 1939, but that 'by execution it is not agreed that there was a delivery of this instrument, as this is the issue of this litigation.' We think that this agreed stipulation recognizes that the complainants were to meet the burden of proving that the deed was delivered during the lifetime of the grantor. It is undisputed that the same was signed and acknowledged, and that the acknowledgment recites that the same was 'signed, sealed and delivered', but the proof discloses that the deed was never filed for record and was found in the trunk of the grantor after her death more than 16 years after the deed was signed and acknowledged.

We think that under Section 1690, Code of 1942, the grantee Mrs. Cola Grubbs was incompetent to testify to establish her own claim or defense against the estate left by Mrs. Betty Reed Everett at the time of the latter's death, and which claim originated during the lifetime of the said grantor. That therefore there was no error committed by the trial court in excluding the testimony of Mrs. Cola Grubbs as a complainant and as a witness in the case, since the suit was to cancel as a cloud upon the title of the complainants the claim of the appellee I. G. Everett, the sole surviving heir of Mrs. Betty Read Everett. The chancellor excluded competent testimony of Mrs. Sara Reed, offered by the defendants, in regard to the said witness having been present when the deed was found...