Saffold v. Horne

• Decision Date: 18 February 1895
• Court: Mississippi Supreme Court
• Parties: WILLIAM SAFFOLD ET AL. v. JOHN W. HORNE ET AL

18 So. 433

72 Miss. 470

WILLIAM SAFFOLD ET AL. v. JOHN W. HORNE ET AL

Supreme Court of Mississippi

February 18, 1895

[Copyrighted Material Omitted]

FROM the chancery court of Harrison county, HON. W. T. HOUSTON Chancellor.

The opinion states the facts.

Affirmed.

Nugent & Mc Willie, for appellants,

Filed a brief, reviewing the course of legislation and the decisions in this state touching the competency of husband and wife as witnesses for or against each other, citing and discussing the following cases: Lockhart v. Luker, 36 Miss. 68; Dunlap v. Hearn, 37 Ib., 471; Stuhlmuller v. Ewing, 39 Ib., 447; Hedges v. Aydelott, 46 Ib., 99; Reinhardt v. Evans, 48 Ib., 230; Rushing v. Rushing, 52 Ib., 329; Barry v. Sturdivant, 53 Ib., 490; Rothschild v. Hatch, 54 Ib., 554; Byrd v. State, 57 Ib., 243. It is true that § 1739, code 1892, provides that husband and wife may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf as against each other in all controversies between them, but the next section is a qualifying proviso to § 1739, and also to § 1738, which removes all common law disability growing out of interest. Under these sections it is clear that Horne is incompetent, and it seems clear that the common law rule is restored in cases where husband or wife are offered as witnesses to establish a claim for the other against the estate of a decedent. This conclusion is the logical result of the language used in Byrd v. State, supra. The common law excluded husband and wife as witnesses both for and against each other in all cases. If the wife, in cases against deceased persons, can be allowed to testify in support of her husband's claim, the force of the statute will fail in the very purpose contemplated. The rule of the common law, or reason of the rule, is that there is an identity of interest, so if the husband cannot testify the wife cannot. This rule is wholly unaffected by our statute. Another reason for her exclusion-namely, public policy--applies with equal force. We find several cases illustrating the views we contend for. See 44 Ala. 227; 46 Ib., 580; 47 Ib., 636; 60 Ib., 522; 71 Ib., 210--all cases arising under a statute similar to ours. See, also, 64 Penn., 77; Ib., 20. If we are correct in our position that § 1740, code 1892, so far modifies the preceding sections as to restore the common law rule when the estates of decedents are involved, it necessarily follows that Mrs. Horne was not competent to establish her husband's claim against the estate of Saffold. See 26 Am. R., 331.

2. The deposition of Crawfoot should have been excluded. The agreement of counsel covered testimony then taken. This is manifest from the use of the past participle "taken."

3. It was error to overrule exceptions to interrogatories eight and seventeen, and the answers thereto of Mrs. Horne. The first question assumes that there were some reasons given by Saffold why Horne should live with him, and therefore suggests an answer. The answer to interrogatory seventeen shows that she did not recollect whether Saffold said that two-thirds of his property belonged or would belong to Horne and Humphries.

4. The bill should have been dismissed. The fundamental issue relates to the delivery of the deed. It always remained in the possession of the grantor, and was never, so far as proof goes, in the possession of the grantees. There was no constructive delivery with intent to pass title. The difference in the case of Neblett v. Neblett, 70 Miss. 572, and this is apparent. The law on this subject is clearly stated in 5 Am. & Eng. Enc. L., 445, note 3. See, also, 11 Am. R., 547; 16 Ib., 35; Ib., 592; 17 S. E. Rep., 213; 34 N.H. 460; 55 N.W. 326; 22 S W. Rep., 560; 17 Ib., 321; 8 Ib., 161; 37 Miss. 501; 11 Ill. 563; 63 Mich. 111. Leaving a deed for record can only be constructive delivery, if done with the knowledge of the grantee, and with the evident or expressed intention that the title is to pass. 5 Wall., 86; 105 Mass. 560; 39 Vt. 538; 15 Mich. 101. The intention to have the registration must be proved. 10 Mass. 456; 10 Johns., 418; 1 Denio, 326; 2 Harr., 501; 4 Ib., 1.

The instrument under which appellees claim is a very strange document. It was not acknowledged until seven years after execution, and it never left the grantor's possession. Appellees never, during the life of Saffold, asserted title or paid taxes, but Saffold, until the date of his death, had full control and possession of the property. Any presumption, therefore, growing out of the acknowledgement and registration of the deed is met and overthrown. Harkreader v. Clayton, 56 Miss. 383; Davis v. Williams, 57 Ib., 843; Metcalfe v. Brandon, 58 Ib., 841; Bullett v. Taylor, 34 Ib., 708. It is evident that Saffold thought the instrument was a will, and it is evident that he did not intend it to take effect until he died. See 67 Maine, 559; 118 Mass. 154.

E. J. Bowers, J. M. Shelton and George S. Dodds, for appellees.

1. The question of the competency of the testimony of Mrs. Horne in support of her husband's claim is set at rest by § 1739, code 1892, and by Rushing v. Rushing, 52 Miss. 329; Barry v. Sturdivant, 53 Ib., 490, and Ellis v. Alford, 64 Ib., 8.

2. The agreement as to the admission of the deposition was obviously made to save costs, and clearly contemplated the use of all testimony then on file or thereafter to be taken in the other case.

3. It abundantly appears from the record that the deed was delivered. The presumption of the delivery arising from the record of the deed has not been overthrown. The validity or invalidity of the acknowledgment can throw no light on the question of actual delivery. It is not true that the presumption of delivery arises only from acknowledgment; it follows from the act of the grantor making, or attempting to make, a public record of the muniment of title. The presumption of delivery is strengthened by the fact that Saffold himself wrote and signed the acknowledgment; by the fact that it was then placed upon record; moreover, the grantees signed the deed, indicating its delivery to them, and their acceptance of it.

In Neblett v. Neblett, 70 Miss. 572, the evidence against delivery was far stronger than in this case. Saffold is shown to have been a man of superior intelligence. He knew the necessity of putting a deed on record, and its effect. After it was recorded, he declared to others that he had deeded appellees an interest in his lands in payment for their services. The fact that the deed was found among Saffold's papers after his death, cannot overturn the proof of delivery. Humphries and Saffold for years lived in the same house. They were on terms of the utmost intimacy and friendship. The deed was for the benefit of the grantees, and their acceptance would have been presumed. Wall v. Wall, 30 Miss. 91.

Argued orally by W. L. Nugent, for appellants, and J. M. Shelton and E. J. Bowers, for appellees.

OPINION

S. S. CALHOON, Special J.

On June 29, 1892, Horne and Humphries filed their bill against the heirs of R. C. Saffold, who died on January 30, 1891, intestate, charging that, on April 1, 1867, he conveyed to each of them a one-third interest in the lands in controversy, by deed signed by him and by them also, and that he, on October 18, 1874, more than seven years after its execution, acknowledged it, and that it was filed for record October 21, 1874, three days after its acknowledgment, and that it was duly recorded the next day; and they pray partition of the land.

Whether or not this deed was delivered is the main feature a of the case. Saffold's heirs filed an answer and cross bill, in which they denied the delivery of the deed by him, and say it remained in his possession up to the date of his death, and that its acknowledgment and filing for record occurred by inadvertence or mistake, or were obtained by the fraudulent procurement of Horne, who had put it among Saffold's papers, and he had acknowledged it inadvertently with other deeds on the same day, filed for record at the same time. They say that Horne and Humphries never set up any claim until after Saffold's death; that Saffold remained in possession of all the lands as his own, cutting timber, receiving rents and selling some parcels of them, and all of them continued to be assessed to him, and he paid all the taxes, all of which was within the knowledge of Horne and Humphries, who made no protest, and who set up no claim. They say the deed was without consideration, and that no services were ever rendered by Horne and Humphries to Saffold, as recited in the deed; that the deed was never intended to pass title, but was upon some trust known only to the parties to it, and that Horne and Humphries must show what the trust was, and must show its performance. They pray cancellation of the deed as a cloud on their title.

Horne and Humphries answered the cross bill, under oath, and it is only necessary to say now that their answers overthrow the cross bill if the case stood upon the cross bill and answers. Testimony was taken up to April 12, 1893, on which day the then counsel for the parties agreed as follows: "That any and all testimony taken in the case of J. W. Horne et al. v. W. L. Nugent et al. may be used in this cause," subject to objections as to relevancy and competency.

A deposition of Hubbard Crawfoot, taken after this agreement of counsel dated April 12, 1893, was read in evidence over the objection of defendants on the ground that the agreement referred only to the testimony then already taken. This is a question for consideration by this court.

Defendants withdrew their cross bill, but the court, a quo, permitted the answers of Horne and Humphries to the cross ...