Hazlett v. Bryant
| Citation | 28 Beeler 251,241 S.W.2d 121,192 Tenn. 251 |
| Parties | , 192 Tenn. 251 HAZLETT et al. v. BRYANT et al. |
| Decision Date | 09 March 1951 |
| Court | Tennessee Supreme Court |
G. E. White, and C. R. Watters, Lewisburg, for appellants.
H. Grady Wade, Lewisburg, C. D. Lamb, and W. T. McCown, Jr., Fayetteville, for appellees.
As this petition for certiorari is presented to us the only question involved is whether or not, under the facts and circumstances of this particular case, the Chancellor should have decreed reformation of a deed of gift which, by mistake of the lawyer drawing the deed, contained an erroneous description of a certain tract of land.
The original bill, as several times amended, alleges that the Complainants, as the surviving heirs at law and next of kin, of Mary Lou Hazlett Bryant, who died September 13, 1947, are the owners of a tract of land in Lincoln County, lying in the 9th Civil District, and containing 157.92 acres; that the Defendant, M. E. (Jack) Bryant, the surviving husband of Mary Lou Bryant, is in possession of this tract of land; claims it as his own, is cutting timber therefrom and farming thereon. Among other things, the bill prays that the Defendant Bryant be dispossessed, and that the ownership of Complainants be decreed and the land sold for partition.
The Defendant M. E. (Jack) Bryant filed an answer and cross-bill in which he averred that by deed from his wife, he is the owner and in rightful possession of said land, and denies that the Complainants have any claim thereto or right to possession or ownership thereof. It is alleged in the cross-bill that prior to May 22, 1947, Mary Lou Bryant was the owner of two tracts of land in Lincoln County which she inherited from her father, one tract is in the 11th Civil District and known in this record, as Tract No. 1, containing 123 acres, and being the home-place upon which the Defendant and his wife had lived during their marriage. Tract No. 2, which is the only tract involved in the present controversy, lies in the 9th Civil District of Lincoln County, about four miles from Tract No. 1, and contains 157.92 acres. The cross-bill alleges that Mary Lou Bryant, before her death, was suffering from cancer, and commencing in May 1947, until her death in September of that year, spent irregular periods in the hospital on account of her disease; that at one time when she was in the hospital, some five months before her death, she conferred with her attorney with reference to making disposition of her real estate, the two tracts of land above described; that to her lawyer and others she expressed her desire and intention to give her real estate to her husband; that she instructed her husband to procure the proper descriptions of the two tracts of land, and turn them over to her lawyer so that he might draw the necessary papers to effectuate a gift of the real estate to the cross-Complainant; that the husband undertook to procure descriptions of the two tracts of land; and took them to the lawyer, who prepared a deed in which, by mistake, description of the second tract in the 9th Civil District, though furnished by cross-Complainant, was that of land not the property of Mary Lou Bryant, and in which she had and claimed no interest; that when the deed was presented to her, she did not discover the mistake and executed the deed, thinking that she was conveying her two tracts of land to her husband; and that the mistake was not discovered until after the death of Mary Lou Bryant, when the mistake could not be corrected by her; that for many months after September 1947, the cross-Complainant had remained in possession of said tract of land, treating it as his own and making improvements thereon; and he therefore prayed that the Chancery Court correct the description, reform the deed and decree his ownership of that tract of land.
Depositions were taken by both parties after Complainants had answered the cross-bill, and on the hearing the Chancellor disallowed the relief prayed in the cross-bill because he found that the evidence adduced to support the reformation of the deed was incompetent as being based on privileged communications between Mary Lou Bryant and (1) her husband, and (2) her lawyer, and that reformation of a deed of gift could not be decreed at the instance of the donee over the opposition of the heirs of the donor. Accordingly, the Chancellor granted the relief sought by the original Complainants. On appeal by the cross-Complainant to the Court of Appeals, in an excellant and well-considered opinion by Judge Howell, that Court reversed the Chancellor and entered a decree granting the relief sought by the cross-Complainant. Because some of the points presented are of first impression in Tennessee, and because important recent authority has been found since delivery of the opinion by the Court of Appeals, we find it necessary to file this opinion.
The Complainants have filed petition for certiorari, and after a careful study of the record, we find the controlling questions are whether the cross-Complainant, Jack Bryant, was entitled to reformation, which questions are determined by determining (1) whether there was sufficient evidence to warrant the reformation without admitting privileged communications, and (2) whether the donee of a deed of gift can have reformation of the deed over the opposition of the heirs of the donor.
In considering the first question, some analysis of the evidence is necessary. The case of the cross-Complainant is made by his own deposition, the deposition of his lawyer and his wife's lawyer, Grady Wade, Esq., and the deposition of cross-Complainant's niece, Rachel Bryant, who lived in the home of cross-Complainant and his wife for some six months prior to her death, and who was present in the hospital, at her bedside, when the deed of gift was executed by her.
The testimony of this niece is not attacked, and so far as it goes, fully supports the case of the cross-Complainant for reformation. The fact that this testimony is at some points, vague and unsatisfactory, has this merit, that it shows that the testimony of the niece was honest and spontaneous, and that she had not been schooled for the occasion.
We next consider the competency of the testimony of cross-Complainant, Jack Bryant, in relation to the prohibition of Code sec. 9777, that a husband may not testify as to any matter that occurred between him and his wife by virtue of or in consequence of the marital relation, and the competency of the lawyer's testimony in relation to Code sec. 9978, that 'No attorney * * * shall be permitted, in giving testimony against a client, * * * to disclose any communication made to him as such by such person, during the pendency of the suit, before or afterwards, to his injury.' (Our emphasis.)
Although the privilege accorded certain communications between husband and wife, and attorney and client, has been long and frequently upheld by the Courts of this State, it has also been frequently recognized that there are many exceptions to this privilege. Conversations and communications between husband and wife, and attorney and client, which have taken place in the presence of third persons, are not privileged. Allison v. Barrow, 43 Tenn. 414; Insurance Co. v. Shoemaker, 95 Tenn. 72, 31 S.W. 270; Sims v. Bank of Commerce & Trust Co., 14 Tenn.App. 672, 681.
T. O. Hazlett, father of Mary Lou Bryant, lived with cross-Complainant and his wife during the last years of his life. Cross-Complainant testified, as did the niece, Rachel Bryant, that the father had agreed with Mary Lou Bryant that cross-Complainant should have the real estate which Mary Lou Bryant inherited from the father. Mary Lou Bryant told the niece about these conversations with her father. No privilege rendered the testimony of Rachel Bryant incompetent.
Evidence of events leading up to the final execution of the deed while Mary Lou Bryant was at the hospital after May 1947, falls into these divisions: Mary Lou Bryant directed her husband to secure descriptions of her real estate and take them to her lawyer for the purpose of having the lawyer draw a deed of gift to the husband. The husband undertook to follow out the instructions, but by mistake, gave the lawyer the wrong description of Tract No. 2, in the 9th Civil District. When the lawyer had drawn the deed containing the erroneous description, he and the husband went to the hospital to the room of Mary Lou Bryant, where she and the niece, Rachel Bryant, were waiting. The lawyer handed Mary Lou Bryant the deed and asked her if she wanted him to read it to her. She replied that she did not, and as to this, the lawyer testified as follows:
'A. Well, she told me that it wasn't necessary; that she wouldn't know the calls and description and that she understood what it was, and I talked to her a few minutes, and I told her that that described the 155-acre tract that she owned in the 9th Civil District and the Home Tract on which they lived down in the 11th Civil District.
'Q. And you honestly believed that you were telling her right about it? A. Oh, yes, I did at the time, I thought I was telling her right, and she said that was the property that she owned, and if that was it, she was going to sign it.
'Q. And did she sign it? A. Oh, yes, she signed it.
'Q. Were you present when she signed it? A. Oh, yes.
'Q. Who else was present? A. Jack Bryant, her husband, was present and Rachel.
* * *
* * *
A. Oh, no. She thought, and I did too, she thought that that deed covered the land that she owned in the 9th Civil District that is the 155-acre tract, and she also thought it conveyed the property down on the Fishing Ford Road, in the 11th Civil District. I told her when she signed it that that was what she was signing.
'
This evidence was competent, not only because it took place in the...
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