Leflore County v. Allen

• Decision Date: 21 April 1902
• Citation: 80 Miss. 298,31 So. 815
• Court: Mississippi Supreme Court
• Parties: LEFLORE COUNTY v. JAMES K. ALLEN ET AL

31 So. 815

80 Miss. 298

LEFLORE COUNTY v. JAMES K. ALLEN ET AL

Supreme Court of Mississippi

April 21, 1902

FROM the chancery court of Leflore county. HON. D. R. BARNETT Special Chancellor.

Leflore county, appellant, was complainant in the court below, Allen and others, appellees, were defendants there.

J. K Allen was treasurer of Leflore county, and was short in his account over $ 4,000. He was threatened with indictment, and while matters were in this condition the legislature passed an act for his relief in March 1886 (laws 1886, p. 772) authorizing the board of supervisors of said county "to take from said Allen lands in such quantities as they may determine, in settlement of said indebtedness," etc. In pursuance of this scheme the district attorney and the board of supervisors undertook to get a settlement of the matter and undertook to get Allen and his wife to convey all the lands they both owned at the time to the county. Accordingly a deed was prepared, embracing all their lands, which Mr. Allen signed, and it was carried to Mrs. Allen by the district attorney and a member of the board of supervisors, for her signature. She refused to sign this deed. The district attorney then threatened to prosecute her husband and send him to the penitentiary if she persisted in not signing the deed; but she still refused to sign it. Afterward a deed was prepared and presented to Mrs. Allen for her signature, embracing certain wild lands, but leaving out some lands owned by her in the town of Greenwood. This deed she signed, and it does not appear that the threats were repeated at the time she signed the deed last presented to her. Mrs. Allen died in 1888, and Mr. Allen died in 1898. A few days before the death of Mr. Allen the children of Mrs. Allen brought an action of ejectment against the county to recover all the lands conveyed by both Mr. and Mrs. Allen. Because of a defective description in the deed of some of the land, the county filed a suit in the chancery court against the plaintiffs in the ejectment to enjoin that suit and to reform the deed. The defendants in that suit answered and made their answer a cross bill, setting up that the deed was obtained under duress, and asked for a cancellation of it, and for an accounting of rents, etc. There was a final decree in that case, perpetually enjoining the prosecution of the ejectment suit, and directing the heirs of Mrs. Allen to make a deed of the lands to the county. From that decree they appealed to the supreme court, where the decree of the court was reversed as to the lands belonging to Mrs. Allen and sustained as to the lands belonging to Mr. Allen, and the injunction against the prosecution of the ejectment suit as to the land of Mrs. Allen dissolved, and the cause remanded. See Allen v. Leflore County, 78 Miss. 671 (29 So. 161). The case in that shape was again heard in the chancery court on the pleadings and proof taken originally and some additional proof, but before any additional proof was taken a motion was made by the complainant to transfer the further trial of the cause to the circuit court. This motion was overruled. The additional evidence was conflicting as to whether or not the threats of prosecution of Mr. Allen were renewed when the second deed was presented to Mrs. Allen--the one she signed--and also as to her willingness to execute the deed conveying her wild lands, some of the witnesses testifying that she had never objected so transferring the wild lands. From a final decree declaring the deed to be null and void in so far as it purported to convey to the county the lands that belonged to Mrs. Allen, and canceling same, and directing the board of supervisors to make conveyance to her heirs, except the one-sixth interest of her husband, J. K. Allen, and allowing rents that had been actually received on same, with 6 per centum interest, except such as were barred by the six-years' statute of limitations from the date of Mrs. Allen's death to the time of filing the ejectment suit, and allowing an attorney's fee of $ 150 on the partial dissolution of the injunction, and allowing credit to the county for all improvements actually paid for before the filing of the ejectment suit, complainant appealed, and defendants prosecuted a cross appeal, on the grounds that the chancellor erred in decreeing that the one-sixth interest of Mr. J. K. Alien in the lands belonging to Mrs. Allen, and the rents thereon, became the property of the county in virtue of the deed he made and in applying the six-years' statute of limitations, instead of the ten-years' statute, thus depriving Mrs. Brown and Mrs. Hughes of their interest in the rents for the first three years after Mrs. Allen's death, they being the only heirs who had been of age for six years.

Affirmed on appeal and cross-appeal, each party to be taxed with one-half the costs.

Monroe McClurg, for appellant and cross appellee.

Every witness who testified upon the point undoubtedly sustained the proposition that Mrs. Allen's violent objection was to the first deed presented for her signature. That deed embraced the property in Greewood, as well as the wild land outside of the city. The first deed, which she refused to make, is what gave her such grave concern, and against executing which she protested. That was the deed Major Allen carried before the board of supervisors and informed them and the district attorney that his wife refused to sign, when the district attorney said, "then I'll put you in the penitentiary." That she was satisfied with the conveyance of the country property, which was so badly infested with "frogs and mosquitoes," and which was a "worry and expense," is most clearly shown by many of the witnesses.

The special act of the legislature, approved March 16, 1886, p. 772, was a legislative pardon of civil and criminal liability of Major Allen on account of his defalcation. The legislature must have had in mind his liability to criminal prosecution to the same extent as it did his civil liability. In fact, the act was but a response to the general desire to let the old man satisfy the embezzlement with land and go free. It was a complete pardon upon the sole condition flint the settlement therein cited be consummated. It was consummated and "all liability" atoned and dead. The subsequent destruction of the settlement because of a fraud, not practiced by, but upon the Allens, could not possibly revive the criminal liability to embezzlement. The pardon being irrevocably complete, all ground for apprehension of indictment or punishment was lost and there could not be thereafter legal duress based upon the fear of infliction of punishment. The possession of the land adversely to the wife began with the delivery of the deed which evidenced the consummated pardon, and the limitation began then to run and was not stopped for nearly twelve continuous years, when the ejectment suit was instituted. This possession was especially open and in defiance of the Allens. If we are not mistaken in this view, the decision must be with us. This court overlooked this contention in the last opinion, because, no doubt, it was not distinctly pointed out in presenting the whole of a voluminous record involving many issues.

As surely as there may be duress, so surely may duress be condoned or ratified. Without arguing this proposition, the attention of the court is called to the fact that there is no offer of restitution of the purchase price of the lands out of the rents or otherwise.

The acquiescence of Mrs. Allen for a little more than two years and of her husband and children for twelve years living in close proximity to the land with a lively knowledge of every act and fact respecting the county's open, adverse, avowed claim, are entirely different acts, facts and circumstances from which ratification may be justly and lawfully inferred. To these positive factors may be added the declaration of Mrs. Allen as to her satisfaction with the settlement of the whole matter, as shown in the testimony in this cause, and especially by that of Mayre and Kimbrough. Simonton v. Bacon, 49 Miss. 582; 1 Story Contracts, 523; Ellis v. Alford, 64 Miss. 8.

The deed made by Mr. and Mrs. Allen to the county is not in any sense "a quit claim deed." The "estate or interest the grantor has in the land conveyed" as used in § 1195 of the code of 1892 means some present, vested interest in or claim to the lands. It does not mean an expectancy, or contingency, dependent upon the death of the present owner. It does not mean even such a conveyance as a child might make to the lands of an aged and infirm parent, because he had not the "estate or interest" contemplated by the statute.

Section 1170 of the code of 1880 abolished the law of curtesy and dower. In lieu thereof § 1171, and subsequent statutes on the subject, the survivor was "entitled to," "shall have" and the property "shall descend to," and not that he shall inherit. So it is, the husband takes an equal distributive share with the children by force of a cold statute, and not by inheritance, not by purchase, not by acquisition, not by descent proper, not by gift, nor by devsie, but by becoming owner of the property, irrespective of blood and of all consideration, save that of having been husband and survivor of the wife, an absolutely arbitrary rule.

The unquestioned desire, purpose and intent of J. K. Allen was to pass the absolute title of his land and of the lands of his wife to the county. This undeniable object of Allen will control in a court of equity despite legal rules. That he was anxious for the county to own all is past questioning. The estate or interest intended or attempted to be conveyed by J K. Alien in the lands of M. V. Allen was not the kind...