Pace v. Pace

• Decision Date: 08 June 1914
• Citation: 65 So. 273,107 Miss. 292
• Court: Mississippi Supreme Court
• Parties: H. P. PACE v. W. M. PACE et al

65 So. 273

107 Miss. 292

H. P. PACE v. W. M. PACE et al

Supreme Court of Mississippi

June 8, 1914

March 1914

APPEAL from the chancery court of Monroe county. HON. J. Q. ROBINS Chancellor.

Suit by H. P. Pace against W. M. Pace and others. From a decree dismissing the bill, complainant appeals.

The facts are fully stated in the opinion of the court.

Reversed.

Leftwitch & Tubb, for appellant.

We will briefly treat the instrument as a deed of gift, inter vivos and, in so doing, we must not be held to waive the argument heretofore made that the instrument is a valid conveyance for a valuable consideration and definite end. In his evidence, appellant himself speaks of it as a deed of gift in one place, but however he may have defined it, this court should treat it as it is; but as a deed of gift, it is certainly a valid conveyance for that part of the estate of Mrs. Peavy which was delivered to appellant in her lifetime, actually or symbolically. We recognize that to make a deed of gift effectual, either as a gift inter vivos or causa mortis, there must be a delivery. Thompson v. Thompson, 2 Howard, 737; Wheatley v. Abbett, 32 Miss. 343; Conner v. Hull, 36 Miss. 424; Young v. Power, 41 Miss. 197; 14 Am. & Eng. Ency. of Law (2 Ed.), 1014-15. Was there a delivery? The learned chancellor evidently committed two errors; the first was in construing the paper as a deed of gift, and not a conveyance for a valuable consideration; and the second, in holding that there was no delivery of any of the property. He must have fallen into both of these errors to have dismissed plaintiff's petition outright. As to the two Billups notes, they were twice delivered; she first gave them to him on the morning of the 15th of November after she had sent for him the night before when she was very ill, all of which has its significance, along with the pass book. The testimony of appellant can be ignored, and this delivery is still indisputably shown and is by no one contradicted. Neither of the notes were endorsed, but all of the authorities hold that a deed of gift of promissory notes payable to order or bearer may be effected without endorsement by delivery. 14 Am. & Eng. Ency. of Law, 1022-32-29; 20 Cyc. 1202.

As to the pass book, the point, a very technical one made by counsel, is that a pass book delivered by the donor to the donee does not pass the money in bank unless it is a saving bank pass book, and they cite 20 Cyc. 1205. This rule here invoked is entirely too technical, and the courts have held that a symbolic delivery of property can be made to uphold a deed of gift. It must be remembered that the instrument of writing of January 16, 1900, conveys the cash money, and this court will, of course, take notice that the common acceptation of the layman is that the money he has in bank is cash money; of course, the lawyers know that the legal relation between a bank and its depositors is that of debtor and creditor, but the question here is one of intention, and the layman considers money in bank as cash. The act of Mrs. Peavy delivering the bank pass book should not be considered independently of the conveyance she had theretofore made, but all the evidence should be considered together, and when so considered, it is entirely too technical to invoke this rule to defeat a palpably plain intention on the part of Mrs. Peavy to give H. P. Pace this money in bank. Many authorities of our own state recognize a symbolic delivery as effectual, and the intention of the testator along with his declaration at the time are all potential in construing the act. Cardine v. Collins, 7 S. & M. 428; Young v. Young, 25 Miss. 28-38; Coppidge v. Barrett, 34 Miss. 621; Wheatley v. Abbott, 23 Miss. 343.

We make one more observation which is to answer the contention that H. P. Pace by consenting to the probate of the will by executor Paine thereby is estopped to claim under the bill of sale, whether it be construed as such or as a deed of gift. There are none of the elements of estoppel in his conduct in this particular, taking every word that Mr. Paine says to be true. Estoppel operates, if it operates at all, here, against W. M. Pace, but estoppel cannot extend to that about which at the time there was no controversy and the truth of which was taken for granted. The validity of the will was not questioned or doubted by either the appellant or his brother and both asked for its probate. The question here is, what passes under the will? Davis v. Bowmar, 55 Miss. 671; Houston v. Witherspoon, 68 Miss. 190.

Conduct, to work estoppel, must have been made with full knowledge of the facts by the party to be estopped, unless he asserts that to be true which does not know to be true and his adversary relies upon such statement to his injury. Silence, in the absence of knowledge of one's rights, does not work estoppel. Thomas v. Romano, 82 Miss. 256; Yazoo Lumber Co. v. Clarke, 95 Miss. 244; Scottish American Mort. Co. v. Bunkley, 88 Miss. 641.

Paine & Paine, for appellees.

As to the second division of counsel's argument in which they say if they are in error as to the character of Exhibit "B" then they insist it was a gift inter vivos or causa mortis. They concede that to constitute either there must have been a legal delivery of all property so given. The fact as to the delivery was one to be established by testimony and the chancellor, after hearing all the evidence, decreed there was no delivery and his decree, being based on conflicting evidence, is conclusive and should not be reviewed by this court.

But counsel in their brief accused attorney for appellees of technical pleading and quibbling; because it is urged in the demurrer and answer that there could be no delivery or change of money in the Bank of Aberdeen belonging to Mrs. Peavey merely by the delivery to appellant of her pass book admitting, for the sake of argument, that such delivery was shown. This position is not technical pleading or quibbling. It is but the assertion of legal rights that inevitably follow the relation of banker and depositor or debtor and creditor. The only legal way a creditor can draw money from a commercial bank of discount, as was the Bank of Aberdeen, is by check or written order. Any other mode of doing so is unknown and unpracticed by bankers and the commercial world. There could not be a symbolic delivery of the money in this bank except by a check or written order. Certain it is, that the possession of a person's bank pass book is no authority for the bank to pay out money belonging to the owner of the bank pass book, to a person merely having the possession of the book. The demurrer which reached this question is a new question in this state but it is good law supported by many excellent authorities and sustained by the chancellor's decree. The point raised by the demurrer and sustained by the chancellor is this: the mere possession of a bank pass book in a commercial bank of discount and deposit is no proof or evidence of the ownership of the money in bank; and therefore, the mere possession of a bank pass book in such a bank, is no evidence of a delivery nor could it be considered a delivery of the money in said bank. But if the bank had been a savings bank, then the rule would have been otherwise, as the bank pass book of a savings bank is accepted as the record of the depositors' account and its production authorizes control of the deposit. See 20 Cyc., pages 1239 and 1240 and the notes under page 1239, note 2, which shows that this rule is recognized as the...