Hans v. Hans, 55261

• Decision Date: 22 January 1986
• Docket Number: No. 55261,55261
• Citation: 482 So.2d 1117
• Court: Mississippi Supreme Court
• Parties: Ruth HANS v. Tibbie Williams HANS, Joe P. Hans, & Lena Jane Hans Edwards.

Page 1117

482 So.2d 1117

Ruth HANS v. Tibbie Williams HANS, Joe P. Hans, & Lena Jane Hans Edwards.

No. 55261.

Supreme Court of Mississippi.

Jan. 22, 1986.

Rehearing Denied Feb. 12, 1986.

Thomas J. Wiltz, Biloxi, for appellant.

Eddie C. Williams, Pascagoula, for appellees.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the Court:

This suit to quiet title and cancel a cloud follows sad, but familiar lines. It is a family fight over property. The land in controversy consists of forty acres described as the NW 1/4 of the NW 1/4 of Section 29, Township 6 South, Range 5 West, Jackson County, Mississippi.

On July 25, 1940, Joseph E. Hans ("Eddie") conveyed this forty acres to his brother, Henry H. Hans, but Eddie continued to occupy the land. In 1953 Eddie married Ruth Hans, the appellant. Henry Hans died on December 26, 1963, and left his widow, Tibbie Hans, and two children, Joe Hans and Lena Hans Edwards.

In May of 1965, Eddie filed a suit to cancel a cloud on his title against his sister-in-law Tibbie and her two children, the appellees here. Henry was not a named defendant as he had already died.

In this 1965 suit, Eddie alleged that he sold Henry the land for $190.00 but that Henry never paid the consideration. Eddie also claimed title to the land in this action by adverse possession. The defense to the suit was that Henry had paid Eddie $190.00 and that Eddie's use of the property after 1940 was permissive. This action was dismissed by Eddie on December 4, 1967.

Then, on December 22, 1975, 12 years after Henry's passing, Eddie executed a correction deed to Henry conveying 1 square foot of property and attempting to cancel the original conveyance for 40 acres.

Our present suit was filed against Eddie by Henry's heirs on January 8, 1980. On the following December 29, Eddie died, and in July of 1981, Ruth, Eddie's widow, and the appellant here, was substituted as the party defendant.

Appellees allege title through the 1940 deed to Henry and contend that Eddie and Ruth continued to use the land by express permission of Henry and his heirs.

In answer, Ruth asserts the non-delivery of the 1940 deed and the affirmative defense of adverse possession, and further that this suit is barred by the statute of limitations.

The chancellor found that the 1940 deed had been delivered and that Eddie and Ruth only had permissive use of the land The chancellor further found that Henry Hans and his late father, Rudolph Hans, Sr., had intended that Eddie be allowed to stay on the land and to give effect to that intention the chancellor declared a life estate in Ruth, the widow, but canceled the cloud and confirmed the title to the 40 acres in Tibbie Hans and her children.

and that the action was not barred by the statute of limitations.

Ruth appeals. The heirs of Henry Hans did not cross-appeal to challenge the life estate.

I. THE QUESTION OF DELIVERY

The 1940 deed from Eddie to Henry was properly recorded but was in the possession of Eddie's widow, Ruth, who claimed to have had its possession since 1953.

The chancellor found that after recordation the deed was sent to Rudolph Hans, Jr., brother to both Eddie and Henry. Rudolph then delivered the deed to Henry. The record is silent as to how Ruth Hans got the deed, but the chancellor affirmatively found that there was never a retention of the deed by Eddie.

Two contrary rebuttable presumptions thus confront one another. First, possession of the deed by the grantor raises a presumption that the deed was never delivered to the grantee, and delivery is an essential element. Farmer v. Runnels, 244 Miss. 525, 142 So.2d 198, 200 (1962). However, in Martin v. Adams, 216 Miss. 270, 62 So.2d 328, 329 (1953), we find, "... while the recordation of a deed raises a presumption of its delivery, this presumption yields to the proof that the deed was never delivered."

Faced with these two presumptions and the conflicting evidence offered by the parties in an effort to overcome them, we cannot say that in finding that the appellees had overcome the presumption of non-delivery and that the appellant had failed to overcome the counter-presumption of delivery that the chancellor committed manifest error.

Our rule in this regard is too well established to bear repeating let alone to support a retreat from its soundness. We will not reverse a chancellor's finding of fact upon conflicting evidence unless he is manifestly wrong. Our cases in this regard are legion and we cite but one, Duane v. Saltaformaggio, 455 So.2d 753, 757 (Miss.1984).

Appellant fails in her defense of non-delivery of the 1940 deed. Under this general assignment, appellant offered some evidence and seeks to argue that the 1940 deed was not an actual sale by Eddie but an accommodation in furtherance of a scheme to defraud potential creditors of Eddie's.

As to any claim that there was no consideration for the 1940 deed, we draw attention to Covington v. Butler, 242 So.2d 444, 447 (Miss.1970), wherein we stated, "... a voluntary conveyance of land cannot be vacated at the instance of the grantor upon the ground that it was made without any consideration."

Also, this attack by the appellant upon the validity of the 1940 deed is barred by any of the statutes of limitations.

II.

IS THE APPELLEE'S ACTION BARRED BY THE STATUTE OF

LIMITATIONS?

The appellant argues that under Mississippi Code Annotated Secs. 15-1-7 and 15-1-9 (1972), our ten-year statute of limitations concerning land, this action accrued in 1940, or at least shortly thereafter, as the acts of Eddie were sufficient to give notice to them.

This argument overlooks the action itself, which was to cancel a cloud on title, the so-called correction deed of December, 1975. As such, the cause of action could not accrue prior to the existence of that 1975 deed.

Regardless of the acts of Eddie prior to the 1975 deed, no action accrued by virtue of those purported acts of dominion if, as appellees contend and the chancellor found, Eddie's use of the 40 acres was merely permissive.

Therefore, the cause of action accrued on December 22, 1975, and the suit was filed on January 8, 1980, and amended in July, 1981. This is well within the statute of limitations and there is no merit to this assignment.

III.

DID APPELLANT ESTABLISH AN ADVERSE POSSESSION CLAIM TO THE

LAND?

Appellant's evidence to support her adverse possession claim includes: That Eddie was living on the land when they married in 1953; that she and Eddie lived there after their marriage; that Eddie moved an old house and rented it; that Eddie built a new house which he and his wife occupied in 1956; that Eddie made numerous improvements on the land; that Eddie took care of the hurricane damage to the trees and was repaid by the Federal government; that Eddie occasionally rented portions of the land and collected the rent; that Eddie posted the land against trespassers; that Eddie paid the taxes until 1951; that Eddie paid the taxes again after the "Corrective Deed" in 1975; and that Eddie had a lease between Texaco and Henry canceled.

Appellees produced evidence in support of their claim that Eddie only enjoyed permissive use. The chancellor then found permissive use and, therefore, no adverse possession.

It is true that under certain circumstances a grantor may adversely possess property against his own grantee, but where the parties are closely related to each other the proof of the adverse possession is not normally as easily established as when the parties are strangers. See Georgia Pacific Corporation v. Blalock, 389 So.2d 498, 501 (Miss.1980).

The permissive use question before us involves a close factual determination. However, the fact remains that "... we have no authority to grant appellant any relief if there be substantial credible evidence in the record undergirding the determinative findings of fact made by the Chancery Court." Johnson v. Black, 469 So.2d 88, 90 (Miss.1985).

Here, the chancellor did have substantial credible evidence to base his findings of permissive use upon and as such this assignment is without merit.

IV.

WERE THE APPELLEES ESTOPPED OR BARRED BY LACHES OR UNJUST

ENRICHMENT?

a.

LACHES

As stated in Twin States Realty Co. v. Kilpatrick, 199 Miss. 545, 26 So.2d 356 (1946),

There is no hard and fast rule as to what constitutes laches. If there has been unreasonable delay in asserting claims or if, knowing his rights, a party does not seasonably avail himself of means at hand for their enforcement, but suffers his adversary to incur expense or enter into obligations or otherwise change his position, or in any way by inaction lulls suspicion of his demands to the harm of the other, or if there has been actual or passive acquiescence in the performance of the act complained of, then equity will ordinarily refuse her aid for the establishment of an admitted right, especially if an injunction is asked. It would be contrary to equity and good conscience to enforce such rights when a defendant has been led to suppose by the word [or silence, or conduct] of the plaintiff that there was no objection to his operations.

199 Miss. at 553, 26 So.2d at 358.

However, in Continental Oil Co. v. Walker, 238 Miss. 21, 117 So.2d 333 (1960), this Court stated, In the case of Hill v. Nash, 73 Miss. 849, 19 So. 707, this Court held that no claim is barred by laches until the limitation has attached, and that laches is no defense if the proceedings are brought within the prescribed period of limitation.

238 Miss. at 34, 117 So.2d at 337-38.

It should also be pointed out that it was 1978 before the appellees discovered the existence of the correction deed, and this suit was filed on January 8, 1980.

Therefore, since the appellees have seasonably brought the action under Mississippi Code Annotated Sec. 15-1-7 (1972), and following the rule laid down in Continental Oil Co. v. Walker, supra, the doctrine of laches is not applicable.

b. ESTOPPEL

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