Sojourner v. Sojourner

• Decision Date: 27 May 1963
• Docket Number: No. 42678,42678
• Citation: 247 Miss. 342,153 So.2d 803
• Parties: Myra SOJOURNER v. Mrs. Merle SOJOURNER.
• Court: Mississippi Supreme Court

Page 803

153 So.2d 803

247 Miss. 342

Myra SOJOURNER v. Mrs. Merle SOJOURNER.

No. 42678.

Supreme Court of Mississippi.

May 27, 1963.

Henley, Jones & Henley, Hazlehurst, for appellant.

Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellee.

JONES, Justice.

From a decree of the Chancery Court of Copiah County, Mississippi, sustaining a demurrer filed by appellee to appellant's amended bill of complaint, appellant appeals. Appellee cross-appeals, and alleges that the lower court erred in permitting the amended bill of complaint to be filed and in refusing to sustain appellee's motion to strike the amended bill, as not being germane to the case.

The original bill alleged that John S. Sojourner, during his lifetime, was the owner of certain lands situated in Copiah County; that he left as his sole and only surviving heirs at law seven children, of whom Miss Myra Sojourner was one. Dan Sojourner, whose widow was the appellee, Mrs. Merle Sojourner, was also a child of the said John S. Sojourner.

The original bill alleged that prior to the death of the said John S. Sojourner, each of his children except Dan and Myra had established their own homes. Dan and Myra, both being unmarried, remained in the family home, living with their father and mother. The mother predeceased the father by some months. During the latter part of the lives of the parents, they became physically incapacitated and the complainant and her brother Dan nursed and cared for them. The other brothers and sisters recognizing this service, held a family conference on or about September 1, 1949, at the residence of C. C. Sojourner, another son, at which conference it was agreed by all such heirs that Dan and Myra would continue to reside on the property and that the other heirs would convey their respective interests to Dan and Myra, but Dan called to the attention of the complainant and his brothers and other sisters that he was entering upon the veterans farm training program and it would be necessary for him to have legal title to said property vested in him to qualify for such training. Some of the heirs were reluctant to convey solely to Dan, but after discussion he agreed with Myra and the other owners of the property that if he were vested with full legal title thereto he would, after a period of three years when the veterans program would terminate, execute a will leaving said property to his sister Myra or give her a deed thereto; that thereupon the heirs reposing trust and confidence in Dan, and solely because they and each of them relied upon his promise, executed and delivered a quit claim deed to said lands; that said transfer was made without any consideration whatsoever, and solely for the purpose of making it possible for Dan to enter upon the training program. The bill further charged that after the expiration of the said training program, Dan advised that he was going to have the will written and executed as promised, and she relied upon such promise, having the utmost confidence in her brother; that she resided with her brother upon the property, keeping house for him, and through their joint efforts maintained and improved the house and property. The bill further charged that Dan married the appellee on or about March 21, 1958, and that Myra continued to reside in the home with her brother and sister-in-law, and continued in her household duties. Dan died intestate on or about June 30, 1960, and under the laws of Mississippi, Mrs. Merle Sojourner was his only heir at law. The bill further charged that the appellee well knew the family arrangement in regard to the said property, she having been advised as to same by her husband. The prayer of the original bill was that on final hearing the court enter a decree that Myra was the owner of said lands and require Mrs. Merle Sojourner as trustee of said property to convey to complainant the fee simple title thereto, and decree that the said Mrs. Merle Sojourner had no interest of any kind whatsoever in said property. It also prayed for general relief.

To this original bill appellee demurred on the ground that there was no equity on the face of the bill, and that the complaint showed an express trust which would be void under Sec. 269 of the Miss.Code of 1942. They also plead by a special plea the said Sec. 269. Later an amended answer incorporating an amended demurrer was filed, adding the additional ground that the bill was barred by the statutes of limitations of the State of Mississippi, and that appellant was estopped by laches. This demurrer to the original bill was sustained, and permission granted for the filing of an amended bill.

The amended bill of complaint contained substantially the same allegations of the original bill, but with added averments therein, including an averment that at the family conference it was agreed that the heirs would convey their interest in said property to Dan and Myra as joint tenants with the right of survivorship, and that then Dan Sojourner called attention to the veterans training program. This bill further charged that Dan made a promise to the complainant and other heirs that if he were vested with full legal title thereto he would, after a period of three years, either execute a will giving the property to his sister Myra or given her a deed thereto; that it was relying upon this promise that the heirs executed the deed to Dan; that the transfer was made without any cash consideration being paid, but the real consideration was that the grantors recognized their obligation to compensate the complainant for the services she had rendered to her mother and father; that the grantors were brothers and sisters and the relationship between all the parties was unusually close and constituted a fiduciary and confidential relationship; that Dan insisted upon them conveying the land to him to enable him to qualify for the training program and represented to all the parties that he would hold the title to said property in trust for his sister Myra, and after the three-year period of the training program had expired he would either convey said property to complainant or leave it to her by his last will and testament; that Myra had resided with her brother Dan for many years and was residing with him at the time of the conveyance, and was assured by Dan that he desired her to continue to reside on said property; that for a long period of time Dan had managed all of the business affairs of complainant and she had explicit trust and confidence in him, and she and the other grantors acted upon the basis of said representation in executing said conveyance, and except for said representation the property would have been conveyed to complainant and Dan Sojourner as joint tenants with right of survivorship.

The amended bill further charged that after the completion of the veterans training program, Dan, during his lifetime, failed to convey said property to the complainant, but she expected to find that he had left a last will and testament devising the property to her; but much to her surprise, he failed to devise the property to her; that the aforesaid conduct on the part of Dan constituted an abuse of complainant's confidence and the confidence of the grantors in said deed; that under such circumstances, the retention of the property involved in this suit by the defendant as heir at law of Dan Sojourner would be unconscionable and in violation of all principles of equity; that the conduct on the part of Dan, including his failure to carry out the representations he made, constituted fraud. Complainant charges that she has learned that it was never the intention of Dan to fulfill the representations he made to the grantors in said conveyance; that it is necessary in equity for the court to take jurisdiction of the case and grant complainant relief in order to avoid unjust enrichment on the part of Dan and...