Humes v. Krauss

• Decision Date: 24 May 1954
• Docket Number: No. 39193,39193
• Citation: 221 Miss. 301,72 So.2d 737
• Parties: HUMES v. KRAUSS et al.
• Court: Mississippi Supreme Court

Page 737

72 So.2d 737

221 Miss. 301

HUMES v. KRAUSS et al.

No. 39193.

Supreme Court of Mississippi.

May 24, 1954.

L. F. Easterling, Ernest Shelton, Jackson, for appellant.

Corban & Corban, Fayette, Satterfield, Ewing, Williams & Shell, Jackson, for appellees.

ROBERDS, Presiding Justice.

During the year 1937, and for many years prior thereto, James Humes was the owner of a tract of 66 acres of land located in Jefferson County, Mississippi. There is some confusion as to who was the record title holder but we will assume that Humes was the true owner.

The land sold April 5, 1937, September 16, 1940, April 7, 1941 and April 6, 1942, for nonpayment of taxes, at which sales the lands were purchased by J. Krauss and G. J. Halford, the appellees on this appeal.

On April 7, 1950, James Humes, by Bernice Humes, his wife and next friend, filed his original bill in this cause, and on October 23, 1951, by his said wife as guardian, he filed an amended bill. He attacked the validity of the sales on various asserted grounds, but further alleged that even though the sales were valid, he yet had the right to redeem the lands therefrom.

Appellees, by answer, took issue on the allegations of the bill, and, by cross-bill, contended that even though the sales were invalid, cross-complainants had title to the land by three years adverse possession under Section 716, Miss.Code 1942 (Section 2288, Code 1930).

The chancellor, after extended hearings, held the tax sales were legal and that Humes' right to redeem from the sales had expired, and that appellees were vested with title to the lands both by virtue of said sales and by adverse possession. From that decree this appeal was taken.

After the appeal was taken and during its pendency Humes died and the cause was revived in the name of his heirs at law.

Appellants first contend, as their main point, that James Humes was insane, or of unsound mind, at the time of said sales and when time for redeeming the lands from such sales expired, and that, although the two years ordinarily allowed for redeeming lands from tax sales had expired when he filed his bill, yet, because of that mental disability, he had such right at the time he filed the bill. The chancellor expressly found the facts against that contention. Appellants urge us on this appeal to hold that the chancellor was manifestly wrong in that finding and ask us to adjudicate that Humes was of unsound mind and had the right to redeem the lands from the sales.

Section 9948, Code 1942, in force when these sales took place, provides that land may be redeemed within two years after the date of sale in the method prescribed in the statute, but savings to 'persons of unsound mind whose land may be sold for taxes, the right to redeem the same within two years after * * * being restored to sanity'. It does not appear that this Court has had occasion to define what is meant by 'unsound mind' as used in said statute and as applied to right to redeem land from tax sales.

Section 698, said Code, reads: 'The term 'unsound mind,' when used in any statute in reference to persons, shall include idiots, lunatics, and persons non compos mentis.'

The definitions in other jurisdictions are of little help. They are deduced under various statutes and differ greatly in scope, as shown by many definitions set out in Vol. 43, Words and Phrases, p. 394 et seq. For instance, a Missouri court said unsoundness of mind exists where there is essential deprivation of reasoning faculties, and unless minds betray total lack of understanding or idiocy or delusion they cannot properly be considered unsound. In re Bearden, Mo.App., 86 S.W.2d 585. An Indiana Court said unsound mind includes every species of insanity or unsoundness of mind. Burkhart v. Gladish, 123 Ind. 337, 24 N.E. 118. In 44 C.J.S., Insane Persons, Sec. 2, at page 47 this definition is set out: 'Unsoundness of mind or Mental unsoundness. The phrase has been judicially declared to be synonymous with 'insanity,' see supra subdivision b(3) of this section. It exists where there is an essential privation of the reasoning faculties, or where a person is incapable of understanding and acting with discretion in the ordinary affairs of life. It has been held included by the terms 'mental disease,' 'mental disorder,' and 'mental illness,' supra. While 'unsoundness of mind' covers the whole range of mental weakness from idiocy up, yet it is said to have a determinate and fixed significance importing not mere weakness of understanding, but a total deprivation thereof, although it may embrace monomania. It has been specifically held that eccentricity, uncleanliness, slovenliness, neglect of person and clothing, and offensive and disgusting personal habits do not constitute unsoundness of mind; and also that incipient arteriosclerosis is not mental unsoundness within the meaning of the law.'

The Supreme Court of this State has uniformly held the test of capacity to execute a will is the ability of the testator at the time to understand and appreciate the nature and effect of his act, the natural objects or persons to receive his bounty, and their relation to him, and is capable of determining what disposition he desires to make of his property. Fortenberry v. Herrington, 188 Miss. 735, 196 So. 232; Cowart v. Cowart, 211 Miss. 459, 51 So.2d 775.

The rule as to deeds is whether the grantor had sufficient mental capacity to reasonably understand the nature of the transaction and its consequences and effect. Gillis v. Smith, 114 Miss. 665, 75 So. 451. And the test in both cases is whether the testator or grantor had that capacity at the time of execution of the instrument.

Without undertaking to state a theoretical applicable rule, we deem it sufficient to say, from analogy of the foregoing Mississippi cases, that in order for complainant to prevail in this cause on the ground of lack of mental capacity, it was necessary for him to show, by a preponderance of the testimony, that he did not possess, during the time for redemption, sufficient mental power to understand that if he failed to pay taxes upon the land it would sell for such nonpayment and that he would likely lose title thereto as a result of such sale.

We now give a summary of the testimony on mental capacity. Joe Davis was the first witness for complainant.

He rented the land from Humes from 1926 to, and including the year, 1940. He said Humes' mind was not good, and he mentioned one occasion when Humes, while riding a horse, failed to recognize and stop at his own home. He paid the rent for a time to Humes and then paid it to Humes' wife because he did not consider Humes capable of transacting business. He was a nephew of Humes' wife. The effect of his testimony is weakened, first, by the uncertainty of the time to which he had reference, and, second, by the fact that the record contains four written leases of the land to Davis, all signed by James Humes, and dated March 6, 1937; March, 1938; January 10, 1939, and January 18, 1940. The witness was asked: 'Q. And you signed with James Humes? A. Yes, sir. Q. He had sense enough to make contracts with you up until 1941 and you never questioned his sense in making the leases? A. I could not. I was just on the place and stayed there.'

The next witness for complainant was his son James E. Humes. He lived on the land in question about the year 1920. He said his father and mother moved to Jackson about that time. Witness moved to Chicago and had been living there thirty years when he testified. He usually came to visit his father and mother once a year. He said his father 'had spells'. He said '* * * he didn't consider him being totally insane then, but every time I would come back he would have those crazy spells.' He was asked if he considered his father unable to attend to business in 1937 and replied 'He must have been off to let it mess up like that.' He said he heard the taxes had not been paid 'immediately after it was, I guess', but he did nothing about it. He was given the dates of tax sales and asked where he was on those dates. He replied, 'I know I was not here. I would have taken up them, but I have been gone continuously for thirty years, only I would make one trip every year, and I could not recall being here on those dates, and I could not say I was here or I was not exactly on those dates.' 'Q. And you don't know the condition of your father on those dates? A. I could not say I was here or was not here, I did not check the dates, I would have to be honest.'

The third witness for complainant was Will Doss, his son-in-law. He said that in 1935, to his recollection, 'The old man had gone peculiar somewhat'. 'Q. Was he off all of the time? A. It went and come at that time. Q. It went and come at that time, then would his mind be all right for a while? A. Yes, sir.' He said the 'old man' got worse as time went by until he seemed 'clear out of his mind.' However, he said Humes worked as a brick mason and mowed yards in Jackson. This witness lived at Vicksburg and he saw Humes every three or four months. He said in 1935 'the old man had gone peculiar somewhat.' In 1939 or 1940 Humes came on the train to visit him at Vicksburg and he went by the place he was supposed to alight from the train. He said he didn't think Humes was able to 'transact business' in 1936 or 1937. He explained that Bernice Humes, wife of complainant, and her husband, while they resided in Jefferson County, lived on 62 acres of land immediately adjoining on the north the land in question, which 62 acres belonged to Bernice.

Elmo Fizer lived near Humes. He saw Humes once or twice a week. He said Humes was sick and didn't have a very good mind. 'He was always ailing.' He said Humes' mind 'went and came'. At times he was all right.

Clave Stampley married Humes' daughter. He said at first Humes 'just acted off--he just acted kind of funny.' Further, 'He acted kind of funny, after I moved over...