Neblett v. Neblett

• Decision Date: 03 April 1893
• Citation: 12 So. 598,70 Miss. 572
• Court: Mississippi Supreme Court
• Parties: S. S. NEBLETT ET AL. v. R. N. NEBLETT ET AL

12 So. 598

70 Miss. 572

S. S. NEBLETT ET AL. v. R. N. NEBLETT ET AL

Supreme Court of Mississippi

April 3, 1893

March 1893

FROM the chancery court of Bolivar county, HON. W. R. TRIGG Chancellor.

The case is stated in the opinion.

Reversed and remanded.

Robert Turnbull and Frank Johnston, for appellants.

The evidence in this case is not sufficient to overcome the prima facie case made by the registration of the deed.

Charles Scott and Woods & Woods, for appellees.

The presumption of delivery raised by the record of the deed cannot stand in the face of the positive testimony to the contrary. Bullet v. Taylor, 34 Miss. 708; Kearney v. Jeffries, 60 Miss. 685. The overwhelming weight of the testimony is that the deed was never delivered and that no consideration was ever paid. The grantees never paid taxes on the land, never claimed or controlled it, and were never heard to speak of the deed. It is shown that Sterling Neblett, Jr., died without knowing any thing of the deed, and that W. J. Neblett never heard of it until two or three years ago. The non-delivery of the deed was established by evidence not fully competent or convincing. If the testimony of other parties was incompetent, certainly that of William E. Neblett is competent, so far, at least, as the interest derived through William J. Neblett is concerned. He was not testifying to establish his own claim, or further his own interest, but directly against both. His deposition cannot be rejected as against Sterling Neblett's heirs, since he was not testifying to establish his own claim.

At the time the solicitor's fee was allowed, there was no contest, hence, the allowance was proper. So far as the record discloses, all parties were willing to the sale for partition after the cloud should be removed. It was necessary that this should be done, so that the lands would bring their full value. The adult defendants made no objection, and, so far as the guardian of the minors answered at all, it was by way of assent, unless it be said that the formal answer of the guardian ad litem is an objection. If so, the court can never allow a fee where there is a minor defendant, because, after the decree, the minor can take an appeal, and, for the first time, make objection.

OPINION

COOPER, J.

The appellees and appellants are the children and grandchildren of Sterling Neblett, Sr., and Ann S. Neblett, his wife. Sterling Neblett, Sr., by his will, devised his estate to his wife, who afterwards devised it in equal portions to their children and grandchildren. The grandchildren, being children of deceased children, were to take per stirpes. In his life-time Sterling Neblett, Sr., was the owner of the lands described in the bill, and, unless a part of them was conveyed by him to his sons Wm. J. Neblett and Sterling Neblett, Jr., he died owning them all.

The purpose of the present proceeding is to have the lands sold for partition, and also to cancel, as a cloud upon the title, a certain conveyance, of date June 8, A.D. 1857, made by Sterling Neblett, Sr., whereby a part of the land was conveyed to his two sons, W. J. Neblett and Sterling Neblett, Jr. This conveyance was recorded in the proper office on the eighteenth day of June, A.D. 1857; but the complainants aver it was never delivered to the parties named as grantees, or intended to be, and that they never claimed any interest thereunder, but recognized the land therein described as the property of Sterling Neblett, Sr., so long as he or they lived; that, notwithstanding the writing and recording of said deed, Sterling Neblett, Sr. , remained in the exclusive possession of the land until his death on the sixteenth day of November, A.D. 1871, having shortly before devised it to his wife, Ann, who was in possession until her death on the second day of August, 1881, having devised it to complainants and the defendants.

The real and only question in controversy is whether the title to the lands described in the conveyance from Sterling Neblett, Sr., to Wm. J. Neblett and Sterling Neblett, Jr., passed to them, or whether the conveyance was only one in form, but not in fact, the lands remaining the property of Sterling Neblett, Sr.

W. J. Neblett died on the fourteenth day of August, 1891, testate, and by his will devised his estate in these lands to his children, among whom is one minor, W. C. Neblett, and who is one of the defendants to the present bill. Sterling Neblett, Jr., died on the thirtieth day of October, 1877, and by his will devised his estate to his children, two of whom--Sallie B. and Lucy--are yet infants. Two of his children, devisees under his will, have since died, leaving as their heirs at law or devisees the following named minor children, who are defendants to this suit, namely: Elise Bagley, Clifton, and Natalie Neblett.

All the parties--complainant and defendant--are non-residents of this state, and, upon publication duly made, decrees pro confesso were taken against the adult defendants, and a guardian ad litem appointed to represent the infants and protect their interests. The answers of the infants, in common form, were put in by their guardian ad litem, and the complainants proceeded to take proof in support of their bill.

Much of the evidence consists of the testimony of persons who were clearly incompetent to testify against the devisees of William J. and Sterling Neblett, Jr. The controversy, as to so much of the lands as are described in the conveyance from Sterling Neblett, Sr., to William J. and Sterling Neblett, Jr., is whether the same are now owned by the devisees of Mrs. Ann Neblett, who was the devisee of Sterling Neblett, Sr., or by the devisees, or their heirs at law or devisees, of William J. and Sterling Neblett, Jr., the grantees in said conveyance. The manifest purpose of all evidence for the complainants, as to this question, is to establish their claim to these lands against the estates of the grantees therein, and the adverse claimants were not competent as witnesses. Code 1892, § 1740; Jacks v. Bridewell, 51 Miss. 881; Green v. Mizelle, 54 Miss. 220; Jackson v. Smith, 68 Miss. 53, 8 So. 258.

The guardian ad litem disregarded his plain and obvious duty to the infants by failing to object to the testimony of the disqualified witnesses. But his failure to object cannot be considered as a waiver by the infants of its competency. The infants cannot waive, because of their incapacity; nor can the guardian, because it is a violation of his duty. The court, which is the guardian of all minors, should, regardless of the delinquency of its officer, reject, of its own motion, all incompetent evidence introduced to affect the estate of a minor. Cartwright v. Wise, 14 Ill. 417; Long v. Mulford, 17 Ohio St. 484 s.c. 93 Am. Dec., 638; Rhoads v. Rhoads, 43 Ill. 239; 10 Am. & Eng. Ency. L., 688.

While the primary and principal object of our laws for the registration of conveyances of land is to protect creditors and purchasers, a not unimportant purpose is to give strength and security to titles by preserving in an enduring form the evidence of its devolution; and, though the mere...