Kemp v. Turman

• Decision Date: 24 February 1913
• Docket Number: 15,645
• Citation: 61 So. 548,104 Miss. 501
• Court: Mississippi Supreme Court
• Parties: MRS. CORA KEMP v. DAN G. TURMAN

61 So. 548

104 Miss. 501

MRS. CORA KEMP v. DAN G. TURMAN

No. 15,645

Supreme Court of Mississippi

February 24, 1913

APPEAL from the chancery court of Chickasaw county, HON. J. Q ROBINS, Chancellor.

Suit by Dan Turman against Mrs. Cora Kemp. From a judgment for plaintiff, defendant appeals.

Mason P. Turman died at his home in Houston, Miss., in 1905 intestate, leaving as his heirs at law his widow and three children, to wit, appellant, Cora Kemp, appellee, Dan G Turman, and another son, M. B. Turman. At the time of the death of the intestate, his wife and daughter were living with him, and both were in feeble health. His sons had left home years before, and were living in other states, and rarely came back on visits to their old home. About a year before his death, Mason P. Turman had given each of his two sons the sum of nine hundred dollars.

At the time of their father's death the sons were notified, and came to Houston, where they remained for several days. During their stay the subject of finances was discussed, and according to appellee's testimony his mother and sister represented to him and his brother that their father had left a very small estate, worth probably $ 2,500, and consisting principally of lots in the town of Houston, and that they (his mother and sister) were in needy circumstances, and urged the two sons to make some provision to relieve their necessity and keep them from want, inasmuch as each of the sons had received the sum of nine hundred dollars from their father during his lifetime. The two sons each claimed to be hard up, but finally it was agreed that the appellee should purchase all of his brother's interest in the estate of their father for six hundred dollars, and that appellant should give his mother and sister his note for one thousand eight hundred dollars, secured by a deed of trust on his interest in certain property left by his father. Appellee says that his mother and sister told him that they could then raise enough money on his note to protect them against want. Appellee says that in order to obtain enough money to pay his brother for his interest in their father's estate, he and his mother and sister executed a deed to a small lot in Houston left by the deceased.

About a year later Mrs. Turman died, and appellee again went to Houston, and found his sister bedridden and in very feeble health. He says that she represented to him that she could never get well, and that their mother had left her part of their father's estate to her for life, and that at her death it would go to appellee, and that in addition she (appellant) had made her will in appellee's favor. Appellee claims that because of such representations, which he believed to be true, but which were in fact untrue, he deeded to appellant his interest in his mother's estate. Appellee alleges that he then returned to his home in Louisiana, and afterwards, upon hearing of his sister's recovery of health and marriage, and that she had made large investments, that he made an investigation, which resulted in disclosing the fact that his sister was not in poverty, and that neither she nor her mother were in want at the time of the death of his father, but, on the contrary, his father had left a large estate, consisting principally of money.

Appellee then filed his bill in chancery for an accounting, and charging that the deed of trust and deed executed by him to his mother and sister had been obtained by fraud, and praying that they be canceled. Appellant answered, denying generally the allegations of the bill, and made her answer a cross-bill, the prayer of which was that appellee pay into the estate the money given to him and his brother (nine hundred dollars each) by their father in his lifetime charging that said sum were given by way of advancement from the estate, and should be repaid by appellee (as he had bought his brother's interest in said estate) before appellee should be allowed to participate in the distribution.

Affirmed.

Leftwich & Tubb, for appellant.

The chancellor in his decree cancelling the deed and deed of trust, recites that they were voluntary; at least that the deed was such. We think the facts show to the contrary that neither the deed of trust nor the deed was voluntary; that it is supported by not only a money consideration of the sum raised to pay Crawford and the one hundred and fifty dollars given to Dan G. Turman by his mother and sister which entered into it, but the absolute consideration of the one thousand eight hundred dollars advanced by the father to his two sons which it was their duty to make good before they had anything else. Further, the daughter was dependent and ill and alone, and Dan Turman was her brother, all of which afforded a good consideration. We submit that after a deed is executed, no matter if it is voluntary, the grantor cannot for that reason come in and cancel it. They should stand as made; they are solemn instruments executed with the advice of friends and counsel, made under full investigations, and there is no sufficient evidence in this record to overcome them. We submit that the decree of the court below cancelling the deed of trust and the deed should be reversed; that since Dan G. Turman bought out his brother for a small consideration because these advancements must be made good, that he ought not to account for the whole one thousand eight hundred dollars to his sister, and since that he takes the remainder under his mother's will after the death of his sister, he should have protection by a proper decree to that extent. Of course, if we are right in this contention, the decrees for accounting outside of the improvements must also be reversed and modified because they are all based on the erroneous decree cancelling the deed of trust and the deed, and the later one dismissing the...