Martin v. Adams, 38619

• Decision Date: 19 January 1953
• Docket Number: No. 38619,38619
• Citation: 216 Miss. 270,62 So.2d 328
• Parties: MARTIN et al. v. ADAMS et ux.
• Court: Mississippi Supreme Court

Page 328

62 So.2d 328

216 Miss. 270

MARTIN et al. v. ADAMS et ux.

No. 38619.

Supreme Court of Mississippi.

Jan. 19, 1953.

Norman B. Gillis, Jr., L. S. McClaren, McComb, for appellants.

Gordon & Gordon, Liberty, for appellees.

HOLMES, Justice.

The appellees here, who are husband and wife, brought this suit in the Chancery Court of Amite County against their eight children to cancel a deed executed by the appellee, Pink Adams, on September 8, 1950, purporting to convey to his wife approximately 402 acres of land in Amite County, and providing that 'at the death of my wife the remainder in and to the said land is to go to and become the property of our children in equal shares. The descendants of any deceased child are to receive the same interest that the father or mother would have received if living at the time of my death.'

The validity of the deed was assailed upon a number of grounds, but we deem it necessary to notice only the charge that the deed was void because of repugnancy between the granting clause and the latter clauses of the deed, and because of non-delivery.

There was a demurrer to the bill upon the ground that there was no deraignment of title. This demurrer was overruled and we think rightly so. Deraignment of title is required only in bills to confirm title to real estate, and to cancel and remove clouds therefrom. Sec. 1325, Mississippi Code of 1942. The primary purpose of this suit was to cancel the aforesaid deed and such was the relief prayed for in the original bill. Deraignment of title in the bill was, therefore, not required.

Assuming for the present the validity of the deed otherwise, we find no objection to it upon the ground of repugnancy. It is a well known rule of construction that where there is a clear and manifest repugnance between two clauses of a deed, the first will prevail, but this rule cannot be invoked where one plain intention can be deduced from the instrument as a whole. It is manifest from the whole instrument that it was the intention of the grantor to convey to his wife a life estate only, with remainder to his children. Massey v. Whittaker, 126 Miss. 99, 88 So. 518.

We have reached the conclusion, however, that the deed is invalid because there was neither a delivery of the deed nor acceptance of it by the grantees. The facts are undisputed. The appellant, Pink Adams, was about 83 years of age. He was the owner of about 402 acres of land which he and his wife had occupied as their homestead since their marriage, a period of approximately 60 years. Without the knowledge of his wife, he had an attorney prepare the deed in question and executed it, and directed the attorney to file it for record and have it returned to him by the clerk. The attorney filed the deed for record on the same afternoon and paid the recording fees on it, and in a day or two thereafter it was mailed back to Mr. Adams by the clerk and placed in a safe with his private papers. On his return home on the night of the day of the execution of the deed, Mr. Adams told his wife what he had attempted to do and his wife immediately declined to accept the deed, and remonstrated with him for what he had done. The deed remained at all times in the...