McAllister v. Mitchner

• Decision Date: 25 May 1891
• Citation: 9 So. 829,68 Miss. 672
• Court: Mississippi Supreme Court
• Parties: A. L. MCALLISTER v. J. W. MITCHNER

9 So. 829

68 Miss. 672

A. L. MCALLISTER v. J. W. MITCHNER

Supreme Court of Mississippi

May 25, 1891

April 1891

FROM the chancery court of Lee county, W. T. HOUSTON, ESQ., a member of the bar, by agreement of parties, presided as special Chancellor in this case.

The appellant, A. L. McAllister, owned a tract of land in Chickasaw county, Mississippi. In 1883 she signed acknowledged, and delivered to her daughter, Mrs. Mitchner, a deed conveying to her this tract of land, reserving therein an annual rental of $ 100 during her own life, and providing that she, the grantor, should pay no rent for any part of the land occupied by her as a home while she lived. The deed by its terms was to take effect immediately on its delivery. It was understood, however, that the deed was not to be placed upon record, as the grantor did not desire that her husband should know that it had been executed, and it was not recorded. The grantee, Sarah Mitchner, was the wife of appellee, J. W. Mitchner. She and her husband were then residing upon the land, and continued to do so until the year 1889, when the said Sarah Mitchner died childless, leaving her husband her only heir. Soon after her death, her husband discovered that the deed above mentioned was not among her private papers, where it had usually been kept. After having an interview with Mrs. McAllister, in which he ascertained that she had possession of the deed, he filed this bill against her, alleging the above facts as to the execution of the instrument, and, further, that the defendant had wrongfully obtained possession of the same. The prayer of the bill was that the defendant should return the deed, or be compelled to execute another. The defendant answered the bill, and, among other things, in her answer she made the following statements:--

"She denies that she did in 1883 make and execute to her daughter a deed to said land and deliver the same. She says the truth in relation thereto is, that she did, about 1883, make and sign a paper and acknowledge the same, and gave the said paper into the hands of her said daughter, not as a delivery thereof to take effect as a deed, but to be simply held by said Sarah Mitchner, not as a deed to pass an interest in said land, unless this defendant should die before said Sarah, and with the distinct understanding and agreement that should the said Sarah think she was going to die before defendant, or should defendant believe that said Sarah was likely to depart this life before defendant, then, in either event, it was agreed that the said Sarah was to hand said paper back to defendant to be cancelled and destroyed; and in the meantime it was specially agreed that said paper should not be recorded, and should be kept from the sight and possession of any one except her said daughter, and not to be placed even in the hands of her husband, said complainant and that said paper was not delivered to take effect as a deed at all, but was to be kept by said Sarah Mitchner for this defendant, and was to be delivered back to defendant if she should ask for the same on the belief that said Sarah should or would likely depart this life before defendant, or should said Sarah Mitchner so think or believe; and respondent and with the intention of transferring to defendant whatever interest, if any, which said Sarah might claim by virtue of said paper in said land. She denies that said alleged deed conveyed the land named to said Sarah Mitchner."

As the decision of the court is made to rest upon these allegations it is unnecessary to set out the other averments of the answer. A great deal of testimony was taken, and the cause was heard on pleadings and proof, a decree being rendered in favor of complainant. From this decree the defendant appealed.

Much testimony was taken as to the mental condition of the said Sarah Mitchner at the time the instrument was redelivered to defendant, and as to the understanding upon which it was originally delivered, and the reasons therefor, the reasons and circumstances of the execution of the instrument, and the intention of the parties at the time; but, in view of the decision of the court, it is not necessary to set out the evidence as to these matters, or the extended argument of counsel based thereon.

It was also averred in the answer that the instrument was originally executed by defendant because of false and fraudulent representations and statements made by and at the instance of the complainant, J. W. Mitchner; but there was very little testimony taken in support of this averment, and, as the point is not mentioned in the opinion of the court, it is not deemed necessary to state any of the facts in regard to it.

Among other things, the defendant testified that she did not intend that the instrument should operate as an absolute deed, but only as stated in her answer, and that she supposed that a deed, to be effectual, had to be recorded.

It is not claimed that anything was said or done by Mrs. Mitchner at the time of the surrender of the deed, to induce defendant to change her position. She rested her defense entirely upon the facts set forth in the foregoing averments of the answer.

Affirmed.

Barry & Beckett, for appellant,

Filed an elaborate brief discussing the facts, and as to the question decided by the court making the following points:--

The authorities hold that the mere manual tradition of a deed is not all that is necessary. It must be delivered to the grantee or some one for him, with the intention of passing the title, and of placing it entirely out of the control or dominion of the grantor, and if the delivery is subject to recall it is not a complete delivery, and does not pass title. Stevens v. Stevens, 150 Mass. 559; Bovee v. Hinde, 25 N.E. 695 (Ill.) ; Martling v. Martling, 20 At. Rep. (N. J.) 41; Roberts v. Jackson, 1 Wend. (N. Y.) 478; Black v. Lamb, 12 N.J.Eq. 108; Little v. Gibson, 39 N.H. 510; Sands v. Sands, 112 Ill. 225.

While the delivery back of a deed does not divest the title as to creditors, yet it estops the grantee and those claiming under him from proving the contents or having it re-established. Bank v. Eastman, 44 N.H. 438; 4 Ib. 191; 24 Ib. 248; 3 Head (Tenn.), 562; 10 Mich. 523; 4 Watts (Pa.) 199; 7 Ind. 178; 9 ib. 323; 13 Ib. 340; 31 Ib. 267; 17 Pick. 214; 21 Me. 164; 80 Ib. 174; 6 Ala. 802; 51 Ib. 390; 112 Ill. 150; 35 Ohio 126; 12 Wend. (N. Y.) 173; Perry v. McLain, 66 Miss. 145; Hart v. Heaphy, decided by this court at the present term.

Where one party is estopped, all volunteers claiming under him are estopped. McCravy v. Remson, 19 Ala. 430.

It is shown that the appellant did not intend that the instrument should take effect absolutely, and tha she believed it was necessary for a deed to be recorded to pass title. On the facts of the cse the instrument should not be re-established. 31 N.J.Eq. 594; 24 Ib. 243; 5 Del. Ch. 507; Notes to Huguenin v. Baseley, 2 Lead. Cas. in Eq. 1156. the facts in this case are very similar to those in Russell's Appeal, 75 Pa. 269, 287.

Defendant testified that she thought the deed would be safe with her daughter under the agreement; that she did not advise with any one as to the effect of the delivery, and that she never thought of taking the risk of her daughter's death. The whole case shows that she did not intend to part with the absolute control of the instrument.

Clayton & Anderson and Thos. J. Buchanan, Jr., on the same side,

Filed a very lengthy brief, as to the decisive question in the case, making the following points:--

1. Appellant was legally in possession of the deed by gift from her daughter, and a court of equity should not make a decree requiring her to deliver up the same to appellee, or to make another. On this point see Perry v. McLain, 66 Miss. 145. In that case it was held, that while an oral agreement to rescind a written contract for the sale of land could not be enforced, it might present a good ground for refusal by the chancery court to specifically enforce the original contract.

2. Mrs. Mitchner, in her lifetime, having given the deed to her mother, with the intention thereby of restoring to her the title to the land, although this may not have actually passed the title, yet neither she nor her husband, who claims under her, could, after that, give evidence of the contents of the deed, because of the rule of law that parol evidence cannot be given of a written instrument where the party beneficially interested therein has purposely destroyed the writing, or voluntarily placed it out of his power to produce the same. This being true, equity will not in this case decree restoration of the deed to appellee, and this, whether it was actually destroyed, or merely withheld by appellant under the gift from her daughter. In support of this proposition we refer to the following authorities: 17 Am. Dec. 410; 55 Ib. 234; 63 Ib. 418; 65 Ib. 283; Thompson v. Thompson, 68 Ib. 638; 75 Ib. 783; 82 Ib. 55; 6 Cush. (Mass.) 163; 9 Pick. 104; 11 Gray, 267; 10 Mass. 403; Tiedeman's Real Prop. § 741; 3 Washburn's Real Prop. p. 587.

In the case of Thompson v. Thompson, supra, the question arose between the grantee and the devisee of the grantor, while in the case at bar it is between the heir of the grantee and the grantor.

The position of opposite counsel that there could be no estoppel...