Jordan v. Jordan

• Decision Date: 24 January 1927
• Docket Number: 25884
• Citation: 111 So. 102,145 Miss. 779
• Court: Mississippi Supreme Court
• Parties: JORDAN v. JORDAN et al. [*]

111 So. 102

145 Miss. 779

JORDAN v. JORDAN et al. ^[*]

No. 25884

Supreme Court of Mississippi

January 24, 1927

Division A

. (Division A.)

1 MORTGAGES. Presumption of grantee's possession must be overcome, before deed absolute in form can be declared mortgage (Hemingway's Code. section 3127).

Presumption that grantee, by virtue of warranty deed, is in possession of land must be overcome, in accordance with Code 1906, section 4783 (Hemingway's Code, section 3127), before such deed absolute in form can be declared a mortgage.

2 MORTGAGES. Evidence held not to overcome presumption of grantee's possession required before declaring deed a mortgage (Hemingway's Code, section 3127).

Evidence held insufficient to overcome presumption that possession was in grantee of deed, as required by Code 1906, section 4783 (Hemingway's Code, section 3127), before such deed absolute in form could be declared a mortgage.

3. MORTGAGES. In order to offer parol proof that deed absolute in form is mortgage, grantor must be shown to have remained in possession.

Where one desires to offer parol proof that a deed absolute in form is a mortgage in fact, it must first be shown that grantor remained in possession of land.

4 MORTGAGES. Evidence held not to establish contract that deed absolute in form was to be treated as mortgage.

Evidence held insufficient to establish contract between grantor and grantee to effect that deed absolute in form was to be treated as a mortgage to be paid by grantor.

5. MORTGAGES. Proof necessary to show absolute instrument was conditional must be clear, unequivocal, and convincing.

When it is sought to destroy the sanctity of an instrument by parol proof and change its form from the absolute to the conditional, proof necessary to alter or change the written instrument must be clear, unequivocal, and convincing.

HON. V. A. GRIFFITH, Chancellor.

APPEAL from chancery court of Harrison county, HON. V. A. GRIFFITH, Chancellor.

Suit by J. C. Jordan and others against Mrs. Nellie B. Jordan. Decree for complainants, and defendant appeals. Reversed and judgment rendered.

Reversed.

Watkins, Watkins & Eager and Scott & Scott, for appellant.

I. This is a case where appellees sought to prove that a special warranty deed absolute upon its face was in fact executed to secure a loan and intended by the parties to the conveyance to be a mortgage. There are no allegations in the pleadings concerning, nor was there any evidence introduced to prove, who has possession of the property at the time the said deed was executed.

Before the matter was affected by legislation what is known as the unrestricted doctrine as regards proving by parol evidence that a deed absolute upon its fact was a mortgage, prevailed in this state; that is, parol evidence was always admissible to give such a character to a deed absolute; but section 1299, Code of 1880 (section 4233, Code of 1892; section 4783, Code of 1906; section 3127, Hemingway's Code) enacted into our statute of frauds a restriction upon the use of parol evidence in this regard.

The legislature obviously recognized and appreciated the great injustice that the unrestricted doctrine was capable of causing and the many loop holes opened by it for fraud. Under section 3127, Hemingway's Code where fraud is not charged in the procurement of the deed, it is only where possession of the property is retained by the grantor that a deed absolute on its face can be shown to be a mortgage by parol evidence. This court had upon numerous occasions declared this to be the law of this state, as created by said section. Heirmann & Kahn v. A. J. Stricklin et al., 60. Miss. 234; Fulz v. Peterson, 78 Miss. 128, 28 So. 829; Culp v. Wooten & Agee, 79 Miss. 503, 31 So. 1; Schwartz v. Leiber, 32 So. 954; McGehee v. Weeks, 112 Miss. 483, 73 So. 287; Williams v. Butts, 124 Miss. 661, 87 So. 145.

Appellees here had the right under section 3127, Hemingway's Code, to introduce parol evidence only under given circumstances, and it was obviously incumbent upon them to show that those circumstances existed before they should have been allowed to introduce such evidence.

The language of section 3127 is definite, final and uncompromising. It says that where possession is parted with, a conveyance shall not be proved, at the instance of any of the parties, by parol evidence, to be a mortgage only. Therefore, we submit, that the court not only erred in admitting parol evidence, but also erred in considering the same after it was erroneously admitted.

II. The chancellor manifestly erred in finding the deed here in question a mortgage. His decision was founded upon, and prompted by, an admission and a declaration of a decedent taken by the chancellor to be against interest, the one of Mrs. Nellie B. Jordan, the other of Mrs. E. M. Holt.

To say the least, the evidence relied upon by the chancellor in forming his opinion is certainly not of that clear, convincing and unequivocal nature required by the law when it is sought to show that a deed absolute on its face was in fact intended to be a mortgage. The authorities hold almost unanimously that the transaction cannot be declared a mortgage unless the presumption which arises from the terms of the instrument is rebutted by evidence of a more convincing character than that which is ordinarily required in civil cases. 19 R. C. L., section 31, page 263, citing Becker v. Howard, 75 Wis. 415, 44 N.W. 755; 27 Cyc., page 1025. See L. R. A. 1916B 192, for the authorities as to the standard of probative force which evidence must satisfy to show a deed absolute on its face a mortgage. See, too, 19 R. C. L., section 31, page 264.

Leathers & Sykes and E. O. Sykes, for appellees.

I. Counsel for the appellant argue that under section 3127, Hemingway's Code, oral testimony was not admissible in this case to show that this deed was a mortgage. The acts of ownership and the acts of possession exercised over this land by the deceased, Jordan, were exactly the same for years before the execution of this deed and after its execution up to the time of his death. No one whatsoever in any wise questioned or disputed this possession and this right of possession.

Read carefully section 3127, Hemingway's Code (section 4783, Code of 1906). This section is perfectly plain and unambiguous and states in precise, definite language that parol testimony is not admissible where the maker of the conveyance parts with the possession of the property. The testimony here shows that the only possession of any one of this land was the possession of Mr. Jordan, and this possession was in no wise altered or changed after the execution of the deed.

In Schwartz v. Lieber, 79 Miss. 257, the court through Mr. Justice TERRALL, expressly construes this statute and says that this section requires this proof in writing only when the maker of the deed parts with possession of the property. This case further shows that any such defense to this suit should have been made by this appellant.

II. The chancellor in decreeing this deed to be a mortgage was amply warranted by the facts. All admissions against interest of Mrs. Holt and Mrs. Jordan are simple admissions, simple facts about which the ordinary mind could make no mistake. The law books say that admissions of this character are entitled to great weight.

The deeds of trust executed by Jordan on these lands, his sales of timber and his attempted sale of timber just before his death, coupled with the fact that the land was assessed to him and the taxes for all years paid, evidently by him for a great number of these years, corroborates and strengthens the view that this conveyance was nothing but a mortgage.

This court has repeatedly decided that a deed absolute on its face will be held to be a mortgage if it clearly appears that it was meant as a security for money borrowed. Littlewort v. Davis, 50 Miss. 403; Freeman v. Wilson, 51 Miss. 329; Vasser v. Vasser, 23 Miss. 378; McGehee v. Weeks, 112 Miss. 483, 73 So. 287; Allison v. Burnam, 136 Miss. 13.

On the question of the admissions of these parties against interest, see William Graham v. Robert Busby, 34 Miss. 274; Taylor v. Webb, 54 Miss. 36; Green v. Mizelle, 54 Miss. 220; Jones on Evidence, Pocket Ed., section 236, page 299; McCleskey Bros. v. Milling Co., 119 Miss. 99, a case directly in point.

The decree of the chancellor in this case is in accordance with the great weight of the testimony and was just and right.

Mize & Mize, Scott & Scott and Watkins, Watkins & Eager, in reply, for appellant.

I. The grantor parted with possession of the property. The evidence shows that the land involved was wild land, from which the timber had been cut prior to making the deed complained of; that at one time a house had been on the land, but the same had been blown down years before. The grantor did not live on the land at the time of the execution of the conveyance. The only testimony to the effect that the grantor had ever been on the land at all after the execution of the deed was exceedingly indefinite.

There is no dispute about the fact that on or about the year 1918 Mr. Jordan left the neighborhood of Gulfport and never lived there any more. It is perfectly apparent that the written power of attorney on the part of the grantee to the grantor, executed three years after the delivery of the deed, giving him authority to sell the land for her, was known by the grantor and that he was acting under it; from which it appears with reasonable certainty that if he did, in fact, go over the land at any time for the purpose of showing the timber, he was doing so under the power of attorney.

In 22 C. J., page 125, the rule is announced as follows: "As a general rule, in the absence of...