McLendon v. Laird

• Decision Date: 14 May 1951
• Docket Number: No. 37959,37959
• Citation: 52 So.2d 497,211 Miss. 662
• Parties: McLENDON v. LAIRD.
• Court: Mississippi Supreme Court

Page 497

52 So.2d 497

211 Miss. 662

McLENDON v. LAIRD.

No. 37959.

Supreme Court of Mississippi, Division B.

May 14, 1951.

L. S. McClaren, McComb, and T. P. Brady and Owen Roberts, Brookhaven, for appellant.

Livingston & Livingston, Prentiss, Brunini, Everett, Grantham & Quin, Jackson & Vicksburg, for appellee.

ROBERDS, Presiding Judge.

The question for decision herein is whether a deed executed by John Laird to his sister, Mrs. Lucile McLendon, and his nephew, Robert McLendon, was, or was not, delivered. The chancellor found there was no delivery and Robert McLendon appeals.

The question is grounded in these circumstances: The deed is dated February 17, 1937, and it was signed and acknowledged on that day. By its terms it conveyed to Mrs. Lucile McLendon and Robert McLendon as tenants in common 160 acres of land, which constituted the homestead of the grantor, and to Robert McLendon certain personal property, the grantor reserving unto himself 'a life estate in all the above described real and personal property, with the right to control and occupy said property during his natural life.' Apparently the wife of the grantor had died a short time prior to the execution of the deed. He was then a widower.

It is contended by appellant that Laird then delivered this deed to the grantees by placing it in the possession of Mr. R. C. Williams, St., cashier of the Bank of Blountville, located at Prentiss, Mississippi, as the agent of the grantees, to be by Williams physically handed over to the grantees upon the death of the grantor. Mr. Williams was placed upon the stand as a witness for the petitioner, Robert McLendon. He testified that he had been connected with said bank for thirty-one years. The bank had no safety deposit boxes, but it did keep in its vault files having upon them the letters of the alphabet, and customers were at liberty to place their papers and documents in the vault for safe keeping. These papers would usually be placed in this file under the first letter of the surname of the customer as, for instance, papers of Laird would be under the letter 'L'. He said the officials of the bank did not know what these papers and documents were; that the customers brought them in, took them out, and added to them as their pleasure, without the bank having knowledge of their identity. No charge was made for this service; it was purely an accommodation to the customers of the bank. As to the deed in question, it was found to be in an envelope with the following notation, written upon a typewriter, upon the envelope: 'PRIVATE. Deed of Mr. John Laird to certain farm lands to be filed for record upon the death of Mr. Laird.' Mr. Williams testified this had been in the bank some seven to ten years before the death of Mr. Laird on April 14, 1949. He did not know whether it had been taken out and brought back, or another substituted, in the meantime. He had no recollection as to when Mr. Laird brought it in. Mr. Laird gave him no instructions about it and apparently never discussed it with him. He also said that Mr. Laird had a good many other papers in the bank, such as government bonds, his will etc. All these, including the deed in question, were kept together. They were placed in the bank for safekeeping just like the other papers of the customers. Mr. Laird was a director in the bank. Williams said Mr. Laird had entire control of these papers. He was asked.

'So there was absolutely nothing in relation to the papers kept for Mr. Laird that was any different from those you kept for other customers of the bank? A. None whatever.

'Q. These papers of Mr. Laird's that were kept at the Bank were at all times considered to be the property and private papers of Mr. Laird? A. Yes, sir.

'Q. Further than that, the Bank and you yourself did not undertake to determine what was in those papers? A. No, sir * * *.

'Q. And at no time did Mr. Laird give you any specific instructions about any of these particular papers insofar as keeping them for any other purpose other than safekeeping for him? A. None whatever. * * *

'Q. As to this particular instrument in that envelope to which you have referred, the envelope is marked Exhibit A, you were given at no time any specific instructions about that envelope? A. No, sir.'

He was asked whether Mr. Laird at any time '* * * ever authorized you directly or in any other manner that you know of to deliver this envelope or any of the contents of that envelope to Mr. Robert McLendon or Mrs. Lucile McLendon or anybody else', and he replied 'No, sir.' It might be noted that there is no proof as to who wrote upon the envelope the foregoing quoted words. From the wording they were apparently written by someone other than Mr. Laird. The wording is not in the first person. He then said he did not know what was in the envelope until after the death of Mr. Laird. He learned of the contents when he carried this envelope, with bonds and other papers, to the administratrix of the estate of Mr. Laird, and delivered all of them to the administratrix and the chancery clerk, at the office of the chancery clerk.

While Williams was the only witness who testified, other facts, admitted by the pleadings or agreed to by counsel, have a bearing upon the question under consideration. These are: After the execution of the deed in question February 17, 1937, Mrs. McLendon, one of the grantees, died. The exact date of her death is not shown. Also, on October 16, 1937, Mr. John Laird remarried, the name of the lady being Ida Stamps. On November 13, 1937, Mr. Laird executed his will. He bequeathed to his wife, Ida Stamps Laird, eight shares of stock in the Bank of Blountville. All of the rest of his property, real and personal, he devised and bequeathed to Robert McLendon and Ida Stamps Laird, share and share alike, after providing for payment of his debts and the erection of a monument to his grave. He nominated his wife, Ida Laird, executrix. On January 22, 1944, John Laird executed to his said wife a warranty deed to the same one hundred and sixty acres of land described in the deed to Mrs. Lucile McLendon and Robert McLendon. This deed was filed for record the date of its execution, and had been on record some four and a half years before the death of Mr. Laird on April 14, 1949. On April 25, 1949, his wife was appointed administratrix of his estate, she, as alleged in a pleading, being of the opinion the will had been revoked. Mr. Williams had testified he assisted Mr. Laird in the purchase of certain government bonds. A list of the bonds left by him appears in the record. The dates extend over the period from October, 1941, to June 1944. There are twenty-one bonds. The total of E-Bonds is $7,000; the total of G-Bonds is $4,300. All of these bonds stand in the name John Laird and others jointly, except two in his name alone. Three of the bonds, for one...