Hebron v. Kelly

• Decision Date: 26 April 1897
• Citation: 21 So. 799,75 Miss. 74
• Court: Mississippi Supreme Court
• Parties: MARY E. HEBRON ET AL. v. GEORGE D. KELLY

21 So. 799

75 Miss. 74

MARY E. HEBRON ET AL. v. GEORGE D. KELLY

Supreme Court of Mississippi

April 26, 1897

March 1897

FROM the chancery court of Adams county HON. CLAUDE PINTARD Chancellor.

The opinion states the case.

Reversed and remanded.

A. G Shannon, for appellant.

It was fully shown that G. Malin Davis, deceased, the ancestor of the defendant, George D. Kelly, in foreclosing the mortgage on the Greenfield plantation and purchasing the same, did so under the express agreement that he would hold the title as security for the mortgage debt and his legacy, and he never intended to hold it otherwise. Anding v. Davis, 38 Miss. 574; Carter v. Burris 10 Smed. & M., 527; Freeman v. Wilson, 51 Miss. 329; Klein v. McNamara, 54 Ib., 99; Russell v. Southard, 12 How. [U.S.], 139. His holding began as mortgagee or trustee, and so continued. Weathersly v. Weathersly, 40 Miss. 456. An absolute sale is often treated as a mortgage. Heirman & Kahn v. Stricklin, 60 Miss. 234; Grocery Co. v. Leach, 71 Ib., 961.

Ernest E. Brown, for appellees.

In the case of resulting trusts, "the trust must result, if at all, at the time the deed is taken and the legal title vests in the trustee. No oral agreement, and no payments before or after the title is taken, will create a resulting trust, unless the transaction is such, at the moment the title passes, that a trust will result from the transaction itself." Perry on Trusts, sec. 133. It therefore makes no difference what declaration or contract Mr. Davis may have made before or after the purchase, or what payments may have been made after the purchase, no resulting trust is established in favor of complainants, since neither their money or effects were used by Mr. Davis in purchasing either the mortgage or plantation. Miazza v. Yerger, 53 Miss. 135; Perry on Trusts, secs. 133, 134.

Counsel for appellants cites authorities holding that where one person conveys land to another, and the object of the parties was simply to secure a debt, that the deed, though absolute in form, will be construed to be a mortgage, and argues that a strong circumstance tending to show the conveyance was intended for a mortgage, is the difference between the debt due the grantee and the value of the land. These authorities are without application. Complainants made no conveyance of the plantation to Mr. Davis, nor did he purchase it to secure any debt due him by complainants. Section 1299, code of 1880, and § 4233, code 1892, impliedly approve the exception engrafted by the courts upon the statute of frauds, by providing that where the maker parts with the possession, a deed absolute on its face shall not be construed to be a mortgage. The cases permitting oral evidence to show that deeds were intended simply as mortgages having no application to the case before the court, unless appellants have proved clearly a resulting trust, it necessarily follows that the decree of the lower court should be affirmed. See Logan v. Johnson, 72 Miss. 185.

OPINION

WOODS, C. J.

In the year 1879 Mrs. Mary Leggett died, leaving a will by which she devised to the appellants, her nieces, and then minors of tender years, a large part of Greenfield plantation. Greenfield wits then incumbered by mortgage for about $ 1, 400, to secure the note of the decedent given to Jefferson College. The will directed the property of the testatrix, real and personal, should be kept together, and that Greenfield be cultivated or leased until said mortgage debt and all other debts of the testatrix herself should be paid off. At the date of the execution of the will, and at the date of the death of the testatrix, neither of the two promissory notes of the testatrix to Jefferson College were due, having each been made March 22, 1879, and due respectively two and three years after date.

By her will the testatrix further directed that after the mortgage debt and her own other debts had been paid off, as thereinbefore mentioned, her executor should pay about the sum of three thousand dollars to G: Malin Davis, in settlement of a debt due him [Davis] by the late husband of the testatrix, Dr. H. H. Leggett.

From the death of Mrs. Leggett, in the year 1879, until the death of Thomas H. McCowen, the father of complainants, in January, 1883, the complainants, with their said father, occupied the Greenfield plantation, and after the death of the father the complainants continued for many years to occupy the plantation with their uncle, one A. H. Cook.

In October, 1896, appellants exhibited their bill in the chancery court of Adams county against Stephen Kelly, executor of the will of G. Malin Davis and guardian of George Kelly, a minor, and said minor, George Kelly, individually, seeking to have George Kelly declared the trustee of the legal title to Greenfield, and to require a conveyance to complainants of the same, and for an accounting, etc.

The bill states and charges the facts just stated by us hereinbefore, as to which there is no controversy. The bill then avers that Davis was a warm personal friend of McCowen and of his infant children, these complainants; that Davis was a lawyer of ability, also, and that he was the attorney and legal adviser of their father and of themselves, and that in his ability and integrity the complainants and their father reposed unlimited confidence, and, being himself interested in Greenfield plantation, under Mrs. Leggett's will, the entire management of their, complainants' interests in Greenfield was left entirely in the hands of said Davis, to be managed as he deemed best. The bill charges that Davis advised that the Jefferson College mortgage, then amounting to about $ 1, 600, be allowed to be foreclosed, and that the Greenfield plantation be sold under said mortgage and...