Smith v. Taylor

• Decision Date: 21 November 1938
• Docket Number: 33383
• Citation: 184 So. 423,183 Miss. 542
• Court: Mississippi Supreme Court
• Parties: SMITH v. TAYLOR

184 So. 423

183 Miss. 542

SMITH v. TAYLOR

No. 33383

Supreme Court of Mississippi, Division B

November 21, 1938

Suggestion Of Error Overruled January 2, 1939.

(Division B.)

1 GIFTS.

The statute requiring conveyances of lands for a term of more than one year to be in writing precluded defendant from obtaining any estate in his father's land by an alleged verbal gift (Code 1930, sec. 2111).

2 TRUSTS.

Where statute provided that declarations of trust in land should be void unless manifested by writing and that every writing declaring a trust should be acknowledged and lodged with clerk to be recorded, no trust was created in land allegedly verbally given by defendant's father to defendant (Code 1930, sec. 3348).

3 GIFTS.

The mere depositing in bank in name of defendant by defendant's father of money received from sale of father's property was insufficient in itself to constitute gift of money to defendant.

4 GIFTS.

Where defendant's father, after depositing money in bank in defendant's name, retained control of deposit, checked against it, and used some of money, there was not a sufficient delivery to constitute a valid gift of money to defendant, notwithstanding alleged consent of defendant to drawing of checks.

5. GIFTS.

Evidence that defendant's father deposited money in bank in name of defendant without any passbook or other evidence that deposit had been delivered to defendant, that a portion of money was thereafter checked out by father, and that some of money was used in purchasing a gin and press, was insufficient to establish a gift of money to defendant or his ownership of gin and press so as to entitle him to such property, as against assignee of trust deed executed by father including that property.

HON. JAS. A. FINLEY, Chancellor.

APPEAL from the chancery court of Alcorn county, HON. JAS. A. FINLEY, Chancellor.

Suit by G. C. Taylor against W. T. Smith, Jr., and others on notes and as assignee of judgments and a mortgage and for appointment of a receiver. Decree for plaintiff, and the named defendant appeals. Affirmed.

Affirmed.

N. S. Sweat, of Corinth, for appellant.

At the time this farm was given to the appellant W. T. Smith, Sr., was in good financial circumstances, was worth about $ 10, 000 or $ 12, 000 and did not owe anybody anything and while the general rule is that real estate cannot be transferred by parol except where the same is taken possession of by the donee and held adversely for the required length of time, yet, at the same time since W. T. Smith, Sr., owed no one anything and it was agreed and understood by the parties that the property was the property of the appellant and was treated as such and the same was never questioned, the appellee has no right now to claim that the gift was not a good and valid gift.

In general the validity of a gift is a question entirely between the donor and those claiming under him and the donee, and it cannot be attacked by a third person having no interest in the property.

28 C. J. 655, sec. 54.

Neither the bank nor the appellee had any interest in the property at that time and the method of handling the ownership of the land was wholly between the donor and the donee and there is no question but that the gift or transfer was intended to be bona fide between the donor and the donee for the reason that when the property was finally sold in 1925 or 1926, the deed was executed by W. T. Smith, but the proof shows that he recognized the property as being that of the appellant for the reason that the matter was discussed between W. T. Smith and the appellant, and when the proposition was made to buy the property W. T. Smith would not agree to sell it until he conferred with the appellant and the appellant gave him instructions to execute the deed. This shows that he recognized the property as being the property of the appellant and, although the legal title according to the records may have been in W. T. Smith, certainly the equitable title to the property was in the appellant; that although the deed to the property was actually executed by W. T. Smith as the grantor, the actual vendor was W. T. Smith, Jr.

Russell v. Watts, 41 Miss. 602, 93 Am. Dec. 270.

The proof shows in this case that the gift was not only not void, but the same was never annulled or voided by the action of the parties, but instead all the proof shows that the same was confirmed by all the intentions and acts of the parties.

The proceeds of this sale was the money of the appellant and shows that the agreement between W. T. Smith and the appellant in regard to the land was bona fide because the proceeds of the said sale were turned over to the appellant as his own and he got all the money. The fact that he did not actually keep the money in his possession and afterwards turned it back to his father and mother and allowed them to keep the money does not make it any the less his property.

28 C. J. 641, sec. 33; Grant Trust, etc., Co. v. Tucker, 49 Ind. A. 345, 96 N.E. 487; Richardson v. Emmett, 61 A.D. 205, 70 N.Y.S. 546; Hulet v. Northern Pacific R. R. Co., 14 N. Dak. 209, 103 N.W. 628; Lucas v. Lucas, 1 Ark. 270.

It was not even necessary that the proceeds of this sale be delivered directly by the purchaser to the appellant to complete the gift, the property had already been recognized by the parties as the property of the appellant and the purchaser could have delivered the money directly to W. T. Smith and W. T. Smith retained the same for the appellant and still it would have been the property of appellant and the gift would have been completed.

28 C. J. 642, sec. 34; Malone v. Lebus, 96 S.W. 519, 29 Ky. L. 800; Barnhouse v. Dewey, 83 Kans. 12, 109 P. 1081, 29 L.R.A. (N.S.) 166; Hayne v. Gwin, 137 Ark. 387, 207 S.W. 67; Young v. Young, 25 Miss. 47.

The appellant was a minor and lived with his father. He was attending school and it would have been rather hard for him to handle all of this cash and he did the sensible thing, the thing that practically any reasonable minor would have done under like circumstances--that is, turned the money over to his father and told him to take care of it for him, in effect making his father his trustee of this property; and this declaration of trust, although it was in parol, was clear, unequivocal and irrevocable, and this record shows that this money was kept in the home by W. T. Smith and Mrs. M. A. Smith as the trustees of the appellant and the property was treated and recognized by the trustees as being the sole property of the appellant; and if it is considered that the gift was not completed until the money was delivered to the appellant then turned the same over to W. T. Smith and M. A. Smith as his trustees, the fact that the intention to make the gift and the completion of it were not simultaneous does not make any difference.

28 C. J. 642, secs. 35, 36.

Where the donor deposits money in the name of the donee and delivers to him, or to a third person for him, a pass book therefor, or gives the bank written authority to pay out the deposit on the order of the donee, or where he, by an express declaration of trust, constitutes himself a trustee of the donee in respect to such funds the transaction is a valid gift inter vivos.

28 C. J. 662, sec. 63.

The delivery of money to the bank under circumstances showing that it was intended as a gift to the person in whose name and for whose benefit it is deposited is a sufficient delivery, the bank being regarded as the agent of the donee.

Minor v. Rogers, 40 Conn. 512, 16 Am. Rep. 69; Zacharie's Succ., 119 La. 150, 43 So. 988; Barker v. Frye, 75 Me. 29; Gardner v. Merritt, 32 Md. 78, 3 Am. Rep. 115; Boyle v. Dinsdale, 45 Utah 112, 143 P. 136, Ann. Cas. 1917E 363; Hallowell Savings Institution v. Tipcond, 96 Me. 62, 51 A. 249.

Where a father deposits money in a bank to the credit of his minor children as a gift it is immaterial that he retains the deposit book and does not inform the children of the deposit; the delivery of the book to him as their natural guardian is a delivery to them.

Tygard v. McComb, 54 Mo. A. 85.

The testimony is absolutely uncontradicted that the money which was placed in the bank to the credit of appellant was a part of the money which had been held by W. T. Smith and Mrs. M. A. Smith as trustees for appellant; and the testimony is further uncontradicted that the money in the bank remained his solely until he used the same in the purchase of machinery.

A conveyance, valid in its inception, does not become invalid by reason of the fact that the debtor subsequently becomes insolvent. But the question is to be determined as of the time the instrument was delivered and not the time of its execution.

27 C. J. 466-467, sec. 106.

There is not one scintilla of evidence in this record that the gift, to appellant was to defraud, whether it was given by giving the tract of land, or whether it was given when the proceeds of the sale of the land were turned over to appellant just after the completion of the sale, or whether the same was considered completed when the money was put in the bank to the credit of appellant, or whether it was considered completed when the cash was actually turned over to. the appellant just prior to the time that he bought the gin press and machinery. The proof shows that the intention of the parties and their actions were absolutely bona fide and free of any intent to defraud.

The uncontradicted proof shows that the appellant employed his uncle, J. S. Smith, to install the machinery and press on the premises. The further uncontradicted proof shows that the press and the gin machinery was the absolute property of the appellant and that it was so considered by all the parties and especially...