Myers v. Viverett

• Decision Date: 06 December 1915
• Court: Mississippi Supreme Court
• Parties: MYERS ET AL. v. VIVERETT

70 So. 449

110 Miss. 334

MYERS ET AL. v. VIVERETT

Supreme Court of Mississippi

December 6, 1915

October 1915

APPEAL from the chancery court of Newton county. HON. SAM WHITMAN Chancellor.

Suit by Mrs. T. Myers and another against L. L. Viverett to cancel claim of title to land. From a decree for defendants plaintiffs appeal.

Complainants claim title under an instrument executed by their father and mother, Benjamin and Eunice Shepherd, which is as follows:

"This deed of conveyance made and entered into this the 10th day of November, 1873, between Benjamin Shepherd and his wife Eunice Shepherd, of the first part, and Rachel and Mary Jane Shepherd, of the second part, all of the county of Newton, state of Mississippi, witnesseth that for and in consideration of the sum of five dollars, and for the further consideration of the parental affection, they have and bear for and toward the said second parties as their children, do by these presents grant, give, bargain, and sell to the said second parties the following lands, tenements, and hereditaments situate in said county, to-wit: west half southeast quarter, section 12, and the west half of the northeast quarter and the east half, northwest quarter, section 13, township 8, range 11 east. To have and to hold said premises as joint owners thereof to their own proper use and benefit in fee simple, and the said first parties for themselves, their heirs, executors, and administrators covenant and agree to defend and warrant the title of said premises to the said second parties against the claim of all persons whatever, but it is nevertheless distinctly understood and agreed that the said first parties are to hold possession and exercise control and ownership to and over said lands, tenements, etc., during their natural lives, and at their deaths the said second parties are to be the sole owners thereof with the personal property of which they may die seised and possessed.

"In witness whereof the said first parties have hereunto set their hands and seals day and year first above written."

Appellants by their bill filed in the court below seek to recover possession from appellee of the land in controversy and to have his claim thereto cancelled as a cloud upon their title. Appellants claim title to the land under an instrument executed by their father and mother, Benjamin and Eunice Shepherd, on the 10th day of September, 1873. This instrument was on the date of its execution duly recorded in the office of the chancery clerk of Newton county; and the reporter is directed to set it out in full. At the time of the execution of this instrument Benjamin Shepherd and his wife, together with several of their children, including appellants, were living upon the land, and continued so to do until the death of Benjamin Shepherd, which occurred on the 8th day of January, 1876. After the death of Benjamin Shepherd, Mrs. Shepherd and several of her children, including appellant Rachel V. Shepherd, and probably appellant Myers, who was formerly Mary Jane Shepherd, continued to live on the land until December of the next year, when she executed and delivered to Mrs. S. J. Livingstone a deed to a part of the land, purporting to convey a fee-simple title thereto. The consideration named in this deed was four hundred dollars, but the real consideration was an exchange of lands; Mrs. Livingstone executing to Mrs. Shepherd a deed to certain other land to which Mrs. Shepherd and her family, including appellant Rachel Shepherd, but not appellant Myers, moved, and on which they continued to reside for several years. Appellant Mrs. G. T. Myers, formerly Mary Jane Shepherd, was then married to Myers; and, while the evidence leaves it in doubt as to whether or not Mrs. Myers at the time of the exchange was living with her mother, it is clear, however, that she did not go with her to the land obtained from Mrs. Livingston.

The negotiations leading up to this exchange of land were conducted by William Shepherd, a son of Mrs. Eunice Shepherd and brother of appellants, in whose testimony appear the following questions and answers:

"Q. State, Mr. Shepherd, what knowledge your two sisters, Mrs. Myers and Miss Rachel Shepherd, had relative to the sale of the land or trade by your mother. A. They had as much knowledge of it as I had. Q. What knowledge did you have? A. The family talked it before it was traded, and I made the trade myself for my mother and these girls, and my mother got me to go and see Mrs. Livingstone. I think my mother had seen Mrs. Livingstone before that, and they couldn't hardly get together, and they got me to go and see her, and told me, if we couldn't trade like we wanted to, to put in two hundred and forty acres that my mother owned--three eighties. I went to see Mrs. Livingstone, and me and her traded acre for acre. That left us one eighty back in Newton county."

It does not appear what statement William Shepherd made to Mrs. Livingstone in order to induce her to agree to the exchange, and the evidence is wholly silent as to any information she may have had relative to appellants' title; in fact, it discloses nothing along this line except the mere fact that the exchange was made and the deeds pursuant thereto executed. Appellants both deny that they participated in any way in bringing about this exchange of lands.

Some time after the exchange between Mrs. Shepherd and Mrs Livingstone, Mrs. Shepherd sold to W. B. F. Adams the remainder of the land included in the...