Saulsberry v. Saulsberry, 40664

• Decision Date: 24 February 1958
• Docket Number: No. 40664,40664
• Citation: 100 So.2d 593,232 Miss. 820
• Parties: Simon SAULSBERRY et al. v. Johnie SAULSBERRY et al.
• Court: Mississippi Supreme Court

Page 593

100 So.2d 593

232 Miss. 820

Simon SAULSBERRY et al. v. Johnie SAULSBERRY et al.

No. 40664.

Supreme Court of Mississippi.

Feb. 24, 1958.

Jas. Stone & Sons, Oxford, R. F. B. Logan, Hernando, for appellant.

Chatham & Walker, Hernando, for appellee.

KYLE, Justice.

This case is before us on appeal by Simon Saulsberry and others, complainants in the court below, from a decree of the Chancery Court of DeSoto County dismissing after a hearing upon its merits the bill of complaint filed by them against Johnie Saulsberry and Lizzie Saulsberry defendants in the court below, seeking to establish an implied trust in favor of the complainants and the estate of Mose Saulsberry in a tract of land conveyed to the defendants by Mose Saulsberry a short time before his death.

This is the second time this case has been before us on appeal. See Saulsberry v. Saulsberry, 223 Miss. 684, 78 So.2d 758. On the former appeal this Court reversed the decree of the chancellor sustaining a general demurrer to the bill of complaint, and remanded the cause. After the filing of the mandate in the court below the complainants filed their third amended bill of complaint, in which James P. Tipton, Administrator C. T. A. of the Estate of Mose Saulsberry, deceased, was named as one of the complainants.

The their third amended bill of complaint the complainants alleged that Mose Saulsberry and his wife, on October 18, 1952, conveyed to Johnie Saulsberry and his wife, Lizzie Saulsberry, 170 acres of land situated in DeSoto County, Mississippi, which constituted a part of the 360 acres of land devised by Mose Saulsberry to Johnie Saulsberry and others in Item 4 of his will dated October 16, 1939; that the said deed of conveyance contained a general warranty of title, and the consideration stated therein was $3,150, paid in cash, and other good and valuable considerations; and that the said Johnie Saulsberry and his wife on the same date executed a deed of trust on said land to the Federal Land Bank of New Orleans for the purpose of securing the payment of a note for the sum of $3,315, bearing interest from the date thereof until paid at the rate of our per cent per annum. The bill of complaint further alleged that the real contract between Mose Saulsberry and his wife, and Johnie Saulsberry and his wife, for the purchase of the 170 acres of land was as follows: That Mose and his wife were to make a gift to Johnie and his wife of 40 acres of the land, and that Johnie and his wife were to pay Mose $90 per acre for the remaining 130 acres of the land, or $11,700; that the recited consideration of $3,150 was paid upon the delivery of the deed, but no deed of trust on said land or any other security was given by Johnie and his wife to Mose for the balance of the purchase price, which amounted to $8,550. The bill further alleged that Johnie Saulsberry had been taken into Mose's home when he was an infant, and had been brought up by Mose as his son; that Mose relied upon Johnie to transact business for him, and confided in and advised with Johnie regarding his business; and that by virtue of the confidential relation that existed between them Johnie had persuaded Mose to execute the deed, and had promised to execute and deliver to Mose a deed of trust for the sum of $8,550 to secure the balance of the purchase price of said land; that such promise on Johnie's part was false at the time it was made, and that Johnie never intended to execute and deliver to Mose any such deed of trust; that such conduct on the part of Johnie was a deliberate fraud, and to allow Johnie and his wife to retain possession and title to the land without executing a note and deed of trust for said purchase price, would result in their being unjustly enriched at the expense of Mose's estate. The complainants therefore prayed that the court declare and establish an implied trust in favor of the complainants and the estate of Mose Saulsberry, deceased, in said land for the sum of $8,550, and that the defendants be declared to hold the said land in trust for the estate of Mose Saulsberry subject to the deed of trust given to the Federal Land Bank; that they be required to execute and deliver to the above mentioned administrator a note and deed of trust for said sum of $8,550.

The defendants in their answer denied the material allegations of the bill of complaint, and averred that the real contract between the parties was set forth in the deed executed by Mose and his wife to Johnie and his wife on October 18, 1952. The defendants averred that the consideration of $3,150 recited in the deed was paid upon the delivery of the deed, and that there was no agreement between the parties that a deed of trust should be executed by Johnie and his wife for any additional sum of money. The defendants denied that Mose relied upon Johnie to transact business for him, or that Mose confided in or advised with Johnie regarding his business affairs, or that Mose was induced to convey the land to Johnie by any false promise of Johnie and his wife to pay any additional amount of money for the land or to execute a deed of trust for any unpaid balance. The defendants denied in toto the allegations of fraud and unjust enrichment set forth in the bill of complaint; and the defendants averred that the complainants were merely disappointed legatees who had no legal or just claims against any part of the property that Mose left except that which he gratuitously gave them in his will.

The cause was heard upon the pleadings and proof at the March 1956 term of the court.

Five witnesses testified on behalf of the complainants. Hattie Morrison, who was a sister of Mose's first wife, Mandy, testified that she lived in Arkansas; that she received a letter from Mr. R. F. B. Logan, one of the complainants' attorneys, a few days after Mose's death concerning the settlement of Mose's estate; and that she came to Hernando to attend a conference in Mr. Logan's office concerning the settlement of the estate. Johnie Saulsberry was present and Mr. Logan talked to Johnie about the land. Hattie testified that after the conference had broken up, she and the other interested parties talked to Johnie in front of Mr. Logan's office, and Johnie stated to them that Mose gave him 40 acres of land and that he was buying 130 acres of land, and that he was paying $90 an acre for it. Johnie did not say anything about any papers. Johnie did not say that he was going to pay anybody for the land, but he did say that if he had to pay it to anyone, he would pay it to the children who rented the land. Hattie stated that she never had any conversation with Mose about selling the land to Johnie, and that she did not hear Johnie say that he had paid Mose $3,150 for the land. Richard Morrison, who attended the conference in Mr. Logan's office, also testified that Johnie said that Mose had given him 40 acres of land and had sold him 130 acres at $90 an acre. Richard stated that after they left Mr. Logan's office and went out on the street, they had a further talk with Johnie. They were trying to obtain a compromise concerning the land he had bought, 'to see if he would be willing to release the 130 acres.' On cross-examination Richard stated that he visited Mose occasionally. He did not know anything about what the agreement was between Mose and Johnie when Mose sold Johnie the land, other than what he had testified about. Johnie did not tell him that he had paid $3,150 for the land.

H. E. Matlock, whose deposition was taken by agreement, testified that he lived in Memphis, but owned a farm at Horn Lake; and that he had known Johnie Saulsberry about 20 years and he knew Mose Saulsberry durring his lifetime. He stated that he picked Johnie up on the highway and carried him to Hernando a short time after Mose's death. He asked Johnie if Mose did not give him a piece of property; and Johnie said that he did. He then asked Johnie if he did not buy the piece of property from Mose, and Johnie said that he did. He asked Johnie if he had paid for it, and Johnie said, 'No, sir, but don't nobody have any papers showing that I didn't pay for it.' Matlock stated that Johnie did not tell him what price he bought the property for. He said he told Johnie not to go down to Hernando; that if he put the matter in court, it would wind up with the others getting it all. Johnie told him that he was not going to throw it in the court, and that was all that Johnie said. Matlock was asked on cross-examination who brought up the conversation about the land. He stated that he did not remember how it came up, but he thought that he asked Johnie about the matter. He stated that Johnie did not tell him that he had paid $3,150 for the land, or that he had borrowed $3,150 from the Federal Land Bank and paid that to Mose. C. B. Hilderbrand, whose deposition was taken by agreement, testified that he lived at White Haven and had known Mose about 35 years. He was asked if he had ever discussed with Mose the deal that Mose was making with Johnie about the land involved in this suit. His answer was, 'Yes, sir, in a way he did.' He stated that Mose told him that he had sold Johnie 130 acres of land and had given him a deed to it, but he did not have a deed of trust. He then asked Mose, 'Why don't you get the deed of trust on it?' Mose then said, 'Well, I will go down there the next day or soon after that.' Hilderbrand stated that he asked Mose about the matter two or three times thereafter. On cross-examination Hilderbrand stated that Mose did not tell him what Johnie paid for the land. Hilderbrand admitted that Mose did not volunteer any information, and it was only after he asked Mose about the matter that Mose told him anything. Mose did not tell him that Johnie had borrowed $3,150 from the Federal Land Bank and paid that to him. Mose did not tell him that Johnie had promised to pay him anything or that Johnie had promised to give him a deed of trust. ...