Myers v. Laird

• Decision Date: 25 March 1957
• Docket Number: No. 40443,40443
• Citation: 93 So.2d 828,230 Miss. 675
• Parties: H. H. MYERS v. Jerry Nell Brumfield LAIRD, etc., et al.
• Court: Mississippi Supreme Court

Page 828

93 So.2d 828

230 Miss. 675

H. H. MYERS v. Jerry Nell Brumfield LAIRD, etc., et al.

No. 40443.

Supreme Court of Mississippi.

March 25, 1957.

Breed O. Mounger, Watkins & Watkins, Tylertown, for appellant.

J. M. Alford, Tylertown, Roach & Jones, McComb, for appellee.

ETHRIDGE, Justice.

This case involves questions of whether there was a valid delivery of a deed in escrow to a depositary, and whether a surviving husband's separate estate is equal in value to a one-half portion of his deceased wife's estate, so that he cannot renounce her will, which made no provision for him. Both of these inquiries are answered in the affirmative.

Mrs. Fannie B. Regan Myers, a widow (at that time she was Mrs. Regan), made her last will and testament on January 7, 1950. By it she devised to appellee Jerry Nell Laird, her niece, an eighty-acre farm in Walthall County, and bequeathed all of her personal property to appellee Ellis Brumfield, her brother and executor, and the father of Jerry Nell.

On February 3, 1950, Mrs. Myers signed and acknowledged a warranty deed which conveyed to Jerry Nell Laird her eighty-acre farm, and reserved a life estate in the grantor. Mrs. Myers placed this deed in a white envelope and sealed it. She then wrapped it in brown paper and took it to her brother, Ellis Brumfield. She advised him that this was a deed of her land to Jerry Nell, 'and I want you to keep it and when I pass away it is hers'; 'you keep it until my death and deliver it to her.' Brumfield left the deed in the envelope and placed it in a chifferobe drawer in his house, where he kept it until the death of Mrs. Myers on April 23, 1954. After her death, he delivered the deed to Jerry Nell, and it was recorded.

Mrs. Myers had a lockbox in the Tylertown Bank. When she handed the deed to her brother, she also gave him a key to the lockbox, which contained a joint certificate of deposit payable to her or her brother, and her will. She did not tell him to place the deed in the lockbox.

After she had made her will and later the deed to Jerry Nell, Mrs. Fannie B. Regan married the appellant H. H. Myers, on March 1, 1950. Appellant had also been married before, and had five children living in Gretna, Louisiana. Appellant and Mrs. Myers lived on the lands in which she had reserved a life estate in the deed to Jerry Nell, and were living there at the time of her death.

This appeal involves two consolidated cases. In one Jerry Nell Laird sued appellant to confirm her title to the land and to remove the cloud asserted by appellant. The other is a contest between Ellis Brumfield, appellee, executor of the estate of Mrs. Myers, and the appellant, for the possession of the personal property of Mrs. Myers. The chancery court held for complainants and against appellant in both cases.

There was a valid delivery of the deed from Mrs. Myers to appellee Jerry Nell Laird by its delivery to Brumfield as the depositary and agent for the grantee. The general rule is set forth in 26 C.J.S., Deeds, Sec. 46:

'The delivery of a deed by the grantor to a third person to be held by him and delivered to the grantee on the grantor's death will operate as a valid delivery, where there is no reservation on the part of the latter of any control over the instrument, and under such circumstances it is usually held that the deed takes effect from the first delivery. On the other hand, the grantor must surrender dominion and control over the title, and, if a power to recall the deed is reserved by him, there is, according to the great weight of authority, no effectual delivery and the deed cannot take effect, even though it comes into the manual custody of the grantee and is unauthorizedly recorded. * * * the intention of the grantor to part with the title, as evidenced by the circumstances surrounding the transaction, affords the true test; and such intention must be established as of the time of delivery to the depositary * * *.'

16 Am.Jur., Deeds, Sec. 143, says: 'It is well established that an effective legal delivery of a deed may be made by the grantor's manual delivery of the deed to a third person, with directions to the latter to hold the deed during the lifetime of the grantor and upon the latter's death to deliver it to the grantee, intending at the time of the delivery to the custodian to part forever with all right or power thereafter to repossess, retake, or control the deed. Such a delivery is effectual to convey title to the grantee upon the grantor's death, although the grantee is not aware of the delivery until after the grantor's death, and the grantor cannot after making such delivery to a third person recall, revoke, or modify the deed without the consent of the grantee, although the deed is gratuitous. * * *'

The leading Mississppi case recognizing this rule is Hall v. Waddill, 1900, 78 Miss. 16, 26-27, 27 So. 936, 28 So. 831, although there it was held that the grantor did not part with full control of the instrument. See McLendon v. Laird, 1951, 211 Miss. 662, 52 So.2d 497. Wilson v. Bridgforth, 1914, 108 Miss. 199, 209-212, 66 So. 524, and Beasley v. Beasley, 1936, 177 Miss. 522, 535, 171 So. 680, held that under the pertinent facts there was a valid delivery to a third person to be held by him and delivered to the grantee on the grantor's death. Those cases are controlling here. The cases relied upon by appellant are distinguishable on their facts as not falling within the requirement that the grantor in delivering the deed to the depositary must part with all dominion over the deed, which is not subject to recall. See Weisinger v. Cocke, 1890, 67 Miss. 511, 7 So. 495; Barner v. Lehr, 1940, 190 Miss. 77...