McAllister v. Richardson

• Decision Date: 20 January 1913
• Docket Number: 15,618
• Citation: 103 Miss. 418,60 So. 570
• Court: Mississippi Supreme Court
• Parties: MARY J. MCALLISTER v. S. M. RICHARDSON, ET AL

60 So. 570

103 Miss. 418

MARY J. MCALLISTER v. S. M. RICHARDSON, ET AL

No. 15,618

Supreme Court of Mississippi

January 20, 1913

APPEAL from the chancery court of Tippah county, HON. J. T. BLUNT chancellor.

Suit by S. M. Richardson and others against Mary J. McAllister. From a decree for complainants, defendant appeals.

See also, 57 So. 547.

The opinion of the chancellor, which stated the facts, is as follows:

"This bill was filed asking the correction of an alleged misdescription of land numbers, and to quiet title to same.

"Mrs A. E. Ford died in the year 1907, leaving a sister, Mrs. Mary McAllister, the defendant herein, as her only heir at law. It is complained by complainants that before her death Mrs. Ford made and delivered to them a deed conveying all her real estate, but by a mistake of the scrivener the wrong land numbers were written in the deed. The defense denied that any deed was ever made, or, if made, it was never delivered hence no conveyance. They further say, if the deed was made it was a testamentary document, and, being voluntary and without consideration, is not subject to correction, but must stand as written.

"I think the evidence establishes the fact that Mrs. Ford intended to convey her land to the complainants. I think, also, that it establishes that the deed was properly executed, and that the misdescription of the land was written through mistake.

"The only difficulty that I encountered was as to the delivery. The objections by defendant to the introduction of Mrs. Richardson and her husband to establish their claim against the decedent are sustained, but, aside from their testimony, prima facie Mrs. Richardson is shown to have been in possession of the land, and in no way, except by inference, has it been shown that her possession was not legal. The paper offered in connection with the deed, tending to show it was a will, cannot be considered for the reason it was never signed nor adopted by any of the parties whose names were attached.

"As to the delivery: Bartlett, who wrote the deed, says Mrs. Ford intended it to be a warranty deed from the time it was made. W. H. Foote says Mrs. Ford told him more than once that she wanted to convey her land to Mrs Richardson, and had done so. Emmett Richardson testifies that he saw the deed in his mother's possession some months before Mrs. Ford's death.

"As to the consideration, the deed recites on its face three hundred dollars. Leaving out Mrs. Richardson's testimony, which is excluded on defendant's motion, there is no proof that the consideration was not paid. Mrs. Ford had the right to place an estimate on the consideration which moved her, whether it was cash paid, services already rendered, or to be rendered. There was testimony to the effect that Richardson had helped Mrs. Ford in the past and that he would continue to do so.

"My finding is in favor of complainants, and a decree may be prepared and sent to me for signature, correcting the deed so as to insert the correct numbers of the land and also quieting the title to same, so far as Mrs. AcAllister's claim is concerned.

"Full time will be given to defendant's counsel to prepare and present bill of exceptions and perfecting an appeal.

"Let the decree be submitted to opposing counsel before being sent to me."

Affirmed.

John Y. Murry, Jr., for appellant.

We desire to discuss the errors of the trial court covered by the assignment of errors herein under three general propositions the last two of which are most relied upon and seriously presented to secure a reversal of the decree entered below and as warranting a decree for defendants (appellants) by this court, to wit:

First. The court erred in remanding--of its own motion, such relief not having been asked for by plaintiffs' counsel--said cause to rule after it had been set down for hearing and fully developed by plaintiffs' counsel, defendant excepting to such action. Second. The decree was contrary to the evidence. Third. The decree was contrary to law governing in the case.

Of these in their sequence:

The court erred in remanding, of its own motion, said cause to rules over the exception of defendants after it was set down for hearing and developed by plaintiffs. An examination of the record will disclose that there was no particle of testimony, other than the incompetent testimony of plaintiffs themselves, that the alleged deed was ever delivered to plaintiffs.

The action of the court below in remanding this cause to rules, on its own motion, after attorneys for plaintiffs had closed their case wholly failing to make out a case, and after counsel for defendant had moved to exclude the testimony as insufficient to warrant a decree, was a serious abuse of judicial discretion. The most that could have been legally done would have been to allow plaintiffs, had they so requested, to dismiss their bill without prejudice. They did not ask such action and defendants should have had a decree.

Whether or not such alleged abuse of discretion will warrant a decree for defendants in this tribunal, it is nevertheless called to the attention of the court for a twofold purpose: (1) To secure an announcement that will prevent trial courts in the future from volunteering, in litigated cases, to assist one or the other of interested parties. (2) To show an insensible bias toward the plaintiffs herein which later probably dominated the judgment of the court in his findings.

Second. The decree entered below in this cause was contrary to the evidence: (1) Because the proof shows that the alleged deed is shown by the testimony to have been intended to take effect at the death of Mrs. Ford and was, therefore, an attempted will and not a deed. If it was intended as a will, it was not properly executed and is void. If it were a will, it could not be reformed.

These three propositions are hornbook law, and this court needs no citations in support of such elementary propositions.

(2) Then even if it was intended as a deed, the evidence shows that it was never delivered to plaintiffs. Where the donor and donee reside together at the time of the gift, the rule is that possession by the donee at the place of their residence is not sufficient to make the gift valid. Overfield v. Sutton, 1 Mat. (Ky.) 621; Brink v. Gould, 7 Lans. (N. Y.) 425; Kelly v. Maness, 31 S. E. (S. C.) 490.

Third. The decree entered by the chancellor below was contrary to law, and the court erred in entering final decree for plaintiffs. As to the forty acres in section 8 there was no description at all; neither on the tax receipt nor in the alleged deed as written by the scrivener; the scrivener, therefore, made no mistake in describing this land, and as to said forty acres there is nothing to reform.

The only competent proof in this case touching Mrs. Ford's action is that she showed or announced her intention to convey. No actual delivery, except such as was attempted to be shown by donee's possession under circumstances which the law above condemns, is shown by the testimony. Therefore, no title passed. Nolen et al. v. Harden, et al., 43 Ark. 307.

In this case the court says: "If there be only an intention to give and no delivery it will be inchoate and incomplete, however strong the expression of intention may be; and the property does not pass. One is bound by his acts, but without consideration, he is not bound to carry out his voluntary intentions, however firmly or earnestly he may express them."

In the above case, parenthetically, the court announced the following in reference to practice in the supreme court touching the facts in chancery causes: "In chancery causes the supreme court will, on appeal, sift the whole evidence and determine what findings of the chancellor should have been upon such of the evidence as was competent and proper; with due reference, however, to the decisions of the chancellor where the preponderance is nice."

To divest one's title by absolute gift requires a renunciation on the part of the donor and the acquisition on the part of the donee of all title, interest and dominion. Brink v. Gould, 43 Prac. 289; Dickescheid v. Exchange Bank, 28 W.Va. 340; Yancey v. Field, 8 S. E. (Va.) 721.

Fontaine & Fontaine, for appellant.

If the instrument is a deed instead of a will, our contention is that said alleged deed was never delivered during the lifetime of Mrs. Ford. Bartlett, the draftsman of the alleged deed was directed to hold and keep it until Mrs. Ford called for it, which he did for about two years, and until he was going to leave the state of Mississippi for Missouri, when he delivered the deed to Mrs. Ford without her calling for it. The next we hear of said alleged deed, it was in the hands of Emmett Richardson, son of appellees, after the death of Mrs. Ford, who was carrying it together with other papers to Esquire Johnson, as he said with reference to having it recorded. He also states that he saw the said alleged deed in the possession of his mother, Aggie Richardson, about two months before the death of Mrs. Ford. Appellees and Mrs. Ford lived in the same house together. We submit that this is not sufficient proof of delivery of the deed. All the facts and circumstances in this case positively refute the idea of the delivery of the deed to appellees. It devolves upon appellees to prove delivery of the deed. The only proof of which is the testimony of Emmett Richardson, the weakness of which we invite your attention as same appears the in record.

There was no mistake in the deed to correct. The grounds for reforming an instrument was a mistake on the part of the draftsman in writing the numbers of the land in the deed. Bartlett, the draftsman says, he called upon Mrs. Ford for her deed to copy the numbers of...