Horne v. Higgins

• Decision Date: 10 April 1899
• Citation: 76 Miss. 813,25 So. 489
• Court: Mississippi Supreme Court
• Parties: JOHN H. HORNE v. CHARLES B. HIGGINS

25 So. 489

76 Miss. 813

JOHN H. HORNE v. CHARLES B. HIGGINS

Supreme Court of Mississippi

April 10, 1899

March 1899

FROM the chancery court of Lauderdale county, HON. NATHAN C. HILL chancellor.

Decree reversed.

Charles B. Higgins, the appellee, was the complainant in the court below; Horne, the appellant, was defendant there. Peter Higgins died, leaving a widow and two sons, and property to the value of seventy-five thousand dollars. One son died, his one-third interest descending to his brother, the appellee. The appellee was a wayward boy, and on arriving at majority his mother, because of his unsteady habits, was unwilling to trust large property to his management. He desired five hundred dollars in cash, and, on suggestion of his mother for this consideration, fifteen days after he became of age he executed to her a conveyance of his two-thirds undivided interest in the entire estate, it being recognized by both the bill alleges, that it was executed in order that the mother might manage the property for him. They lived together, and in making sales of parts of the property the appellee was required to join the mother in the conveyances, and the mother invested the proceeds of sales made in other property, taking title to herself. Afterwards the mother married the appellant, Horne, and in a few months died. Appellee, Higgins, filed his bill seeking cancellation of the conveyance by him to his mother, and further praying the court to declare and adjudge that he, the complainant, was the owner of all the property to the extent of two-thirds interest therein; that all his mother's liabilities be paid out of her one-third interest, and then that the residue of that one-third be divided between himself and the appellant. Horne interposed a demurrer, which was overruled, and he appealed to the supreme court.

Fewell & Son, for appellant.

The bill states only two facts to invalidate the deed: (1) That the complainant had only recently come of age, and (2) that the consideration was grossly inadequate. All the other statements of the bill--as to what the complainant and his mother were advised and believed, that the deed was a legal fraud, and as to what everybody understood upon the subject, and as to the subsequent conveyance of the land by Mrs. Higgins (complainant joining in the deeds)--all this is wholly immaterial and irrelevant. The bill manifestly goes upon the ground that complainant had recently come of age when the conveyance was made by him and that the consideration was inadequate; that for these reasons the deed was void. But neither of these reasons rendered the deed void. A deed by a son, recently come of age, to his mother is not void, unless it be procured by fraud or some undue influence. 1 Perry on Trusts, 201; Jenkins v. Pye, 12 Curtis, 712. It is always necessary to prove affirmatively some improper or undue influence in order to set aside contracts between parents and children, and the proceeding must be had at once. The child cannot wait until the parent's death or until the rights of other parties have intervened. 1 Perry on Trusts, 201. And the undue influence relied upon to set aside the deed must be expressly and clearly charged in the bill. Jackson v. Cleveland, 90 Am. Dec., 277; Perry on Trusts, sec. 226. But there is no allegation or charge of fraud or undue influence in the bill, and, of course, no proof could be admitted. Influence acquired by kindness and affection is not undue influence. Influence, in order to be undue, must be such as to deprive a party of free agency. It must be proved; it cannot be presumed. Mackall v. Mackall, 135 U.S. Rep., 167.

As to inadequacy of consideration, that is not a distinct head of equity jurisdiction; that alone does not give a court jurisdiction. A deed without any consideration at all is good between the parties. Inadequacy of consideration does not vitiate a deed. If the party, knowing that the consideration is inadequate, enters into the contract with his eyes open, he cannot have relief, unless he can prove that fraud or undue influence was practiced upon him by the other party. 1 Perry on Trusts, sec. 187.

Then neither the fact that the deed was made by complainant, who had recently come of age, nor that the consideration was inadequate, rendered the deed void; and no fraud or undue influence being alleged or charged against Mrs. Higgins, the grantee, the deed must stand.

If the allegations of the bill that at the time of the execution of the deed complainant and Mrs. Higgins, the grantee, verbally agreed and understood that, notwithstanding the deed vested the legal title to the property in her, she was to hold the property in trust for the complainant; then this was an express trust, and not being in writing was null and void, because in violation of the statute of frauds (See Code 1880, § 1296; Code 1892, § 4230; Clearman v. Cotton, 66 Miss. 467; Moore v. Jordan, 65 Miss. 229; Miazza v. Yerger, 53 Miss. 135; Jackson v. Cleveland, 90 Am. Dec. & Note; 20 N.Y. 391; 46 N.Y. 610; Sturtevant v. Sturtevant, 75 Am. Dec., 371.)

The bill seems to seek to set up a resulting trust in the land embraced in the deed. But this could not be done in this case, because the deed not only recites a pecuniary consideration, but contains full covenants of warranty. And such a deed cannot be shown to have been intended to give the grantee a resulting trust in the property. (See Moore v. Jordon, 65 Miss. 235; Jackson v. Cleveland, 90 Am. Dec., 266.) This is a bill to cancel an executed contract. This power is an extraordinary power and will never be exercised by a court of equity except in a clear case, and never for an alleged fraud unless made clearly to appear, and never for a false representation, unless its falsity is certainly proved, and unless the complainant has been injured or deceived by it. The averment upon this subject must be sustained by proof. Atlantic Delaine Co. v. James, 94 U.S. Rep., 207, 214.

Therefore, it is always necessary to prove some improper or undue influence in order to set aside contracts between parents and children. But the proceeding must be had at once; the child cannot wait until the parent's death or until the rights of other parties have intervened. 1 Perry on Trusts, sec. 201; Godden v. Kimmell, 99 U.S. 201, 210, 211, 212, and authorities there cited; Jenkins v. Pye, 12 Pet., 241, s.c. in 12 Curtis, 712-716 in the opinion; Brown v. County of Buena Vista, 95 U.S. 161; Marsh v. Whitmore, 21 Wall., 185.

In the case of Jenkins v. Pye, 12 Peters, 241, it was insisted that a deed from a daughter to a father was prima facie void; but the court held that, while that was the English rule, the contrary prevails in this country--that such a deed was prima facie good.

As to the statute of limitation of ten years, see code 1880, which applies to the case (§§ 260, 2885, 2696; same as code 1892, §§ 2763, 2730, 2731), fixing ten years as the limitation of action or suit of this description. Code of 1892, § 2731. See 1 Perry on Trusts, secs. 230, 228. Even if the conveyance of the seventeenth of April, 1886, was void for fraud, or for any other reason, still this suit was barred by the statute of limitation of ten years. Statute of limitations to be applied in courts of equity as in courts of law. Code of 1892, § 2731; 73 Miss. 862.

But, even if the suit was not barred by the statute of limitation of ten years, as expressly provided by the code (see sections referred to above), the suit was barred because of laches or negligence of the complainant, who acquiesced in the conveyance of April 17, 1886, for nearly twelve years, and until after the death of Mrs. Higgins, the grantee; whereas the law required him to proceed promptly to set aside the deed. Perry on Trusts, sec. 201. Diligence must be used to establish a trust on ground of fraud. 1 Perry on Trusts; Scott v. Freeland, 7 Smed. & M., 409; Hatch v. Kizer, 33 Am. St. Rep., 258.

Where there has been laches in prosecuting a claim, or long acquiescence, the party should set forth the impediments to an earlier prosecution of his claim, and, if he does not, the chancellor may justly refuse to consider his case on his own showing, without inquiring whether there is a demurrer or any other formal plea of the statute of limitations contained in the answer. Godden v. Kimmell, 96 U.S. Rep., citing Adams v. Adams, 21 Wall., 185. This is a bill to cancel an executed contract....