Mallory v. Walton

• Decision Date: 24 March 1919
• Docket Number: 20606
• Citation: 81 So. 113,119 Miss. 396
• Court: Mississippi Supreme Court
• Parties: MALLORY ET AL. v. WALTON ET AL

81 So. 113

119 Miss. 396

MALLORY ET AL. v. WALTON ET AL

No. 20606

Supreme Court of Mississippi

March 24, 1919

Division A

[81 So 113, Division A.]

1 PARTITION. Title to property.

In a partition suit where the complainant has no interest in the land the bill should be dismissed without reference to what interest the defendants may have therein.

2. ACKNOWLEDGMENT. Signature. Adopting mark.

Where a party acknowledged and delivered a deed, he adopts as his signature the mark appended as such thereto, though it may have been made by another.

3. ACKNOWLEDGMENT. Impeachment. Evidence. Sufficiency.

The presumption is that a certificate of acknowledgment states the truth, which presumption can be overthrown only by evidence so clear, strong, and convincing as to exclude all reasonable controversy as to the falsity of the certificate.

4. TRIAL. Failure to request ruling. Waiver of objection.

Where plaintiff objected to the introduction in evidence of the record of a deed, as inadmissible under Code 1906, section 1956 (Hemingway's Code, section 1616), because its execution had been denied under oath and the court reserved its ruling. In such case, plaintiffs, by failing to request a ruling on this objection before the close of the evidence, waived such objection and defendants had a right to have the record of the deed considered without producing the original.

HON. J. G. MCGOWEN, Chancellor.

APPEAL from the chancery court of Calhoun county, HON. J. G. MCGOWEN, Chancellor.

Suit by Mrs. L. J. Walton and other against Vernon Mallory and others. From the decree rendered, defendants appeal.

The facts are fully stated in the opinion of the court.

Decree reversed and bill dismissed.

Dunn & Patterson, for appellant.

We respectfully submit that this case should be reversed and decree entered in this court confirming the title in the defendants.

We cite the following authorities on the point of the erroneous entering of the decree pro confesso: Minor v. Stewart, 2 H. 912; Hargrove v. Martin Pleasants & Co., 6 S. & M. 61; Kelly v. Brooks, 67 Miss. 235; George v. Soloman, 71 Miss. 168; Simpson v. Smith & Sons Gin Co., 75 Miss. 505; Kennedy v. East Union Lumber Co., 92 Miss. 405. On the question of resulting trust, see Brown, State Land Commissioner v. Alexander, 79 So. 842, and the authorities cited thereunder.

The complainants in this case are claiming an interest in this property as the heirs of T. P. Walton; therefore they stand precisely in the shoes as the man from whom they claim to inherit the property. The proof in the case shows conclusively in fact its denial is not attempted, that T. P. Walton, the husband of Mrs. L. H. Walton, and the ancestor of the other petitioners who claim as an heir of said husband, received from Captain Naron one thousand, two hundred dollars, the full purchase price of the property and that said T. P. Walton delivered the deeds to Capt. Naron. Could T. P. Walton, or those claiming through him seek a court of equity for a partition of this land, and name the grantees of his grantee as parties defendant, and bring them into court of chancery without offering to do equity by repaying what he had gotten from Naron as full purchase price for the property? Our authorities seem to be unanimous in the negative. Newman v. Taylor, 69 Miss. 670; Mortgate Co. v. Jefferson, Ib. 770; Dean v. Robertson, 64 Miss. 195; Pounds v. Pounds, 70 Miss. and so on ad infinitum.

The acquiesence of Mrs. Walton in these deeds for such a great length of time, as well as her positive acts of attorning to the grantee for rent upon the death of her husband; the removal from the place; the repeated purchase; the building of valuable improvements; all we say, and respectfully submit to this honorable court, estop her from now being heard to say that she did not sign the deed, and this must be especially true when she acknowledges that the officer and her husband came to her, and she contents herself by merely saying "She did not sign it," and declined to sign it. Her signature appears by "her mark" in both deeds, and she does not state that she did not authorize any one to make her mark, or that she herself did not make it. She merely contents herself by saying that she didn't sign it. On the question of estoppel see, also, Lucas v. American Freehold Land Co., 72 Miss. 366, and authorities cited therein.

It is not every case where a witness denies something that would raise a question of fact. It has been repeatedly held by our courts that the whole case must be looked to to govern the case, or to throw light upon the testimony of any witness.

Evans & Hannan, for appellees.

The evidence, as I understand it, is that Walton, deceased, joined by his wife, conveyed to Captain Naron, his son, and Mr. Mancell, a one-half undivided interest in the land, reserving therein either a life interest or the use of it during his life. When her husband died the one-half undivided interest became absolutely the property of the Narons and Mancell, and it was proper for her to notify them, and to account for rent for the further use thereof. This did not estop her as, we understand it, from claiming an interest in the remaining one-half undivided interest. Mrs. Walton denies that she joined in any deed made by her husband to McCarthy. The records, it is true, show her name as one of the makers of the deed by her mark without witness. She could certainly testify that she did not execute or sign such a deed, and I submit that her testimony in denial of the making of such a deed, cannot be barred by the death of Captain Naron in whose favor, it is claimed, there resulted a trust.

There is no estoppel on account of the sale of homestead by head of family and warranty and receipt of purchase money, because the sale and deed is void. Bollen v. Lilly, 37 So. 811, 85 Miss. 344.

Do the acts of the defendants subsequent to the death of T. P. Walton estop them from claiming title to one-half undivided interest in the land? I do not understand the evidence to show that Mrs. Walton knew of the execution of any deed to McCarthy by her husband at the time it is claimed it was executed. It may be inferred from the evidence that she knew of it at some indefinite later time, but I think that for estoppel positive knowledge must be proved. However I submit that even if she knew of it, she is not estopped by such knowledge.

I do not think it is shown in evidence that she knew of any contemplated purchase of this interest by the defendants, appellants, or any through whom they claimed. Hill v. Nash, 73 Miss. 849, 19 So. 707. I take it that if no deed was executed by Mrs. Walton, the record purporting to show the execution of a deed and its acknowledgment, is not constructive notice, as I understand by the statute that in order to give constructive notice, there must be execution with proper acknowledgment and proper recording.

Any accounting for rent to the Narons after the death of T. P. Walton, deceased, for their one-half interest in the land was proper, and I think does not estop appellees from claiming title to the other one-half interest.

If improvements have been placed on the land by recent claimants, with the knowledge and acquiescence of the appellees, I submit that this may be equitably settled by this court between the parties, and is not matter of estoppel.

I submit that even if appellees were claiming entire title to the land, and were estopped at all in regard to improvements, it would go only to the improvements and not to the title of the land. Willy v. Brooks, 45 Miss. 543.

I submit that there is not sufficient evidence to show on the part of appellees willful or wanton conduct causing purchaser of the Narons to believe in the existence of entire title to the land in the Narons, or inducing such purchaser to act on that belief, nor on the other hand that there is sufficient evidence to show that any appellants relied on any conduct of appellees in purchasing the land. Toben v. Allen, 53 Miss. 563; Staton v. Bryant, 55 Miss. 261; Davis v. Bowmar, 55 Miss. 671; Lake v. Perry, 95 Miss. 550, 49 So. 569.

OPINION

SMITH, C. J.

This is a suit for partition instituted in the court below by the appellees, who are the widow and children of T. P. Walton who died in December, 1905. The bill alleged that on the 15th day of March, 1887, Walton was the owner of the land here sought to be partitioned, which was then his homestead, and that on that day he, together with his wife, executed and delivered to G. W. Naron, T. T. Mancil, and J. R. Naron a deed to a one-half interest therein; that on the 4th day of May, 1908, the grantees in this deed conveyed their interest in the land to C. W. Latham, through whom the appellants claim mesne conveyances; that the appellants were the owners of the other one-half interest in the land by inheritance from Walton; and prayed not only for the partition of the land, but for an accounting for rents and profits. The answer of the appellants admitted all the allegations of the bill, but denied that the appellees owned any interest in the land, and in support thereof set forth that in March, 1887, one Daniel McCarthy conceived the idea that there was a vein of coal under the land, and induced G. W. Naron to purchase the same, with the view to its being mined by them and the profits divided between them; that Naron paid Walton therefor one thousand, two hundred dollars, and had him to execute two deeds thereto, the one set forth in the appellee's bill of complaint, and another to a one-half interest therein to McCarthy, the consideration in each being six hundred dollars both of which deeds were signed and delivered by Walton and his wife; that McCarthy was mistaken in thinking that...