McMahon v. McMahon, 42792

• Decision Date: 18 November 1963
• Docket Number: No. 42792,42792
• Citation: 247 Miss. 822,157 So.2d 494
• Parties: Mrs. Lydia Schloesser McMAHON v. W. A. McMAHON.
• Court: Mississippi Supreme Court

Page 494

157 So.2d 494

247 Miss. 822

Mrs. Lydia Schloesser McMAHON v. W. A. McMAHON.

No. 42792.

Supreme Court of Mississippi.

Nov. 18, 1963.

T. Eugene Caldwell, Jackson, Joe G. Moss, Raymond, for appellant.

Wells, Thomas & Wells, Roland D. Marble, Jackson, for appellee.

McELROY, Justice.

This is an appeal from a decree of the Chancery Court of the First Judicial District of Hinds County, Mississippi. The bill of complaint of the appellant, Mrs. Lydia McMahon, alleged that a certain purported quitclaim deed dated October 10, 1944 was a forgery, asked that the same be canceled and that she be adjudicated the legal holder of an undivided one-fourth interest in certain real estate, and that a judgment be entered against the appellee in the sum of $34,000 plus interest from July 27, 1959 for one-fourth of the proceeds of part of the property, with a lien imposed on the remaining property.

This is the second time this appeal has come before he court. In the first trial the appellee incorporated a demurrer in his answer. The court sustained the demurrer and dismissed appellant's bill of complaint. This appeal was reversed and remanded in McMahon v. McMahon, 243 Miss. 89, 137 So.2d 520. The allegations of the bill of complaint are well stated in this appeal.

When the bill of complaint was remanded the court allowed the appellant to amend her bill of complaint to show that a right- of-way agreement was executed by the appellee and others in favor of the power and light company to cross the land involved for a consideration of $20,000, and praying for an additional judgment in the amount of $5,000 plus interest, and to make appellant's interest in said lands subject to the right-of-way, making the total sum of $39,000, and imposing a lien on the land until the amount is paid.

The court on motion of the appellee required the appellant to amend the bill of complaint: (1) that the quitclaim deed in question was a forged deed; or (2) that the quitclaim deed was signed by complainant as a result of fraud and duress.

The amended bill of complainant alleged that the quitclaim deed was secured by fraud and duress on the part of the appellee, that a fiduciary relationship existed between the parties at a time when there was great sorrow in her life and when her affairs were in a personal and peculiar knowledge of the appellee, and that she had signed said deed at a time when she was required by the appellee and his attorney to execute many instruments which she believed to be in connection with her late husband's estate.

At the time the case was set for hearing, which was around June 13, 1962, the appellee filed an answer to the amended bill of complaint to which he attached a written agreement alleged to have been entered into by the appellant and the appellee on the same date as the quitclaim deed was signed, that is, on October 10, 1944. That agreement, in part, is as follows:

'The undersigned, Mrs. Lydia Schloesser McMahon, has on this date executed a Quit Claim Deed to the undersigned, W. A. McMahon, on the N. 1/2 of the S. 1/2 of Section 12, Township 5, Range 1 West, in the First Judicial District of Hinds County, Mississippi and does herein release and relinquish unto the said W. A. McMahon, all rights, claims, and interest, if any, against all the assets and property owned by the Estates of John B. McMahon and Mrs. Malissa McMahon, deceased, in consideration of the said W. A. McMahon paying all costs, expenses, and Attorneys fee and all Inheritance and Estate Taxes in connection with the Estate of James Hutson McMahon, deceased, being administered upon in the Chancery Court of the First Judicial District of Hinds County, Miss., at Jackson, Mississippi, and all costs and expenses in connection with the Probating of his will in said Estate, and in further consideration of the said W. A. McMahon relinquishing and forever waiving all claims for his services in managing the property and collecting rents and in having repairs made on the property of James Hutson McMahon, deceased, and Mrs. Lydia Schloesser McMahon in the City of Jackson, Mississippi and in the First Judicial District of Hinds County, Mississippi, and for his services in getting tenants for said houses and in paying taxes on same and in doing everything in connection therewith.

'* * *

'The said Mrs. Lydia Schloesser McMahon hereby acknowledges payment in full of all sums of money due her deceased husband, James Hutson McMahon and herself for their interest in the property known as No. 938 Hunt Street, Jackson, Mississippi and being the sum of $2,000.00.'

This agreement was sworn to by the parties.

Both appellant and appellee were advanced in years. In fact, the appellant had had a stroke and could hardly talk, and her evidence amounted to very little, if anything, in the trial of the case.

W. A. McMahon was called as an adverse witness and testified that he had operated the place as a farm since he was eighteen years of age, that he had been there for a period of around sixty-seven years, that he had exercised absolute control over the property for such period of time, and that after the death of his father and mother he took charge and operated the place; in fact, the only difference was that they were gone. Mrs. McMahon was the widow of the brother of the appellee, Hut McMahon who died in the year 1942. Hut owned some property in Jackson and he collected the rents for him and paid the taxes for him and kept a set of books on it; there was some agreement to pay him 20% for this, but for some reason he had never charged this or taken it out of the rent checks as they were paid. He placed tenants on the property owned by the appellant, made repairs, paid the taxes and insurance, all without consulting the appellant, and she always accepted his judgment without question. He stated that sometime in 1944 Mrs. McMahon came up here to see something about selling some property, which Mr. Lewis wanted to know about, and he gave them their address, and that they met in Mr. J. Sivley Rhodes' office. He stated that he didn't have Mr. Rhodes as his attorney, but that he was there for Mrs. McMahon's attorney. He said that at that meeting some question came up about the one-fourth interest in the property, that he told her that since he had been taking care of the property for both her and her husband and that her husband had promised to pay him 20% for his services, that he was going to claim that against her if she was going to try to claim the property. He further stated that he told her in Mr. Rhodes' office that she was not entitled to a foot of the place, but he knew that the court would give it to her, and also told her that if she did not pay him for services he had rendered, he was going to file suit against the estate of her deceased husband.

Mr. McMahon stated that the deed of October 10, 1944 and also the contract signed at that time were outgrowths of this meeting in Mr. Rhodes' office, that he agreed to pay appellant's attorneys' fees and all court costs in connection with appellant's husband's estate, not knowing what the amount might be, in return for the appellant conveying to him her interest in the property, that she was to give him a deed for some other land for $2,000 as more or less part of the consideration, that he never did get the land deed, but he did give her a check for the $2,000 and he considered that as part of the consideration of her quitclaim deed here.

Since there was property in Jackson to be sold, it was necessary for the husband's will to be probated here, although he had lived in Louisiana. The will was admitted to probate in the chancery court around October 7, 1944. This deed was filed of record in the office of the chancery clerk of Hinds County, Mississippi on October 11, 1944, and was immediately recorded. The decree probating the will was entered around June 29, 1945, and about the same date appellant sold by warranty deed to W. E. Lewis and wife the lot which she had contracted to sell in August of 1944.

On December 27, 1946 the appellee bought out the interests of his remaining cotenants, Neil G. McMahon and Lucille McMahon McNeil. During all of this time, appellant continued to sell lots that she owned in Hinds County, which goes to show, and it is undisputed in the record, that the appellant knew the effects of signing the deed. She knew what she was doing and intended to sell her property.

It is undisputed that W. E. Lewis wanted to buy a lot from the appellant, that W. E. Lewis had as his lawyer J. Sivley Rhodes, to check the title and draw him a contract to purchase the lot from Lydia McMahon, and that W. E. Lewis introduced W. A. McMahon to John Sivley Rhodes, the attorney, that John Sivley Rhodes never represented W. A. McMahon, but did represent Mrs. Lydia McMahon as executrix of the estate of James Hutson McMahon, the deceased husband.

There is very little conflict of any testimony in the case occurring around the date of October 10, 1944. Mr. Rhodes' deposition was taken, but he was a very sick man at the time, had cataracts on his eyes, didn't see, and it seemed that his memory was very bad, in fact, he didn't remember much about any of the occurrencies. At first he said there was nothing done in his office about the deed, then he finally stated that he couldn't remember anything that happened eighteen years ago, that his memory was very poor on the question.

However, there was other testimony introduced by Linton Godown that in his opinion the quitclaim and the agreement were typed on the same typewriter on which the papers in the Estate of James Hutson McMahon, Deceased, were typed, which estate was handled by John Sivley Rhodes; that all of the instruments were probably typed by the same typist.

In other words, the only testimony in this case was given by the appellee in the case, a man eighty odd years old, against whom a bill was drawn charging duress and force and threats...