Thomas v. Bailey, 51202

• Citation: 375 So.2d 1049
• Decision Date: 10 October 1979
• Docket Number: No. 51202,51202
• Parties: Pearl G. THOMAS v. Betty Jean Thomas BAILEY and Charles M. Thomas, Individually and as Administrator of the Estate of C. Evans Thomas, Deceased, and as Putative Trustee of Said Estate.
• Court: Mississippi Supreme Court

Page 1049

375 So.2d 1049

Pearl G. THOMAS v. Betty Jean Thomas BAILEY and Charles M. Thomas, Individually and as Administrator of the Estate of C. Evans Thomas, Deceased, and as Putative Trustee of Said Estate.

No. 51202.

Supreme Court of Mississippi.

Oct. 10, 1979.

Gibbes, Graves, Mullins, Bullock & Ferris, C. Denton Gibbes, Jr., Laurel, for appellant.

J. Larry Walters, Laurel, for appellee.

Before PATTERSON, ROBERTSON and WALKER, JJ.

WALKER, Justice, for the Court:

This is an appeal from the Chancery Court of the Second Judicial District of Jones County, Mississippi.

The relevant facts are as follows: C. Evans Thomas died on October 30, 1976. During his lifetime, he was twice married. He had two children by his first wife, a daughter, Betty Jean Thomas Bailey and a son, Charles M. Thomas, the appellees, both of whom survived him. He also left surviving him his second wife, Pearl G. Thomas, the appellant.

At the time of Mr. Thomas' death, all of the heirs were under the mistaken belief that he owned the commercial property in question in fee simple, and that the heirs would inherit one-third of the property each. Because of this belief, all of the parties mutually agreed that Pearl G. Thomas, the second wife, would convey her believed one-third interest in the commercial property to Charles M. Thomas and Betty Jean Thomas Bailey, reserving unto herself a life estate in the rents and profits therefrom. This arrangement was entered into for the purpose of preventing Pearl G. Thomas' heirs from inheriting her one-third interest in the commercial property upon her death. A deed was executed accordingly on April 11, 1977, and filed for record.

The estate of C. Evans Thomas was opened and administered with Charles M. Thomas as administrator. When the time came to close the estate, all of the parties, Betty Jean Thomas Bailey, Charles M. Thomas and Pearl G. Thomas, executed a sworn petition praying that the estate be closed. In the petition, it was alleged that the commercial property in question was a part of the assets of the estate. A final decree was entered that the decedent died seized of the property in question.

For the next five months, each of the parties received $200.00 per month, which was approximately one-third each, of the net proceeds from the rental. At the end of that time, the payments to Pearl G. Thomas were stopped. Betty Jean Bailey produced a deed which she said had been given to her by her father, and which she had placed in her deposit box and forgotten, because she did not know the legal effect of it. She had shown the deed to Charles M. Thomas approximately two weeks after receiving it and replaced it in the deposit box. The deed had been executed by the deceased on February 11, 1971, and conveyed the commercial property to Betty Jean Bailey and Charles M. Thomas, but retained a life estate therein. The deed had not been filed for record, but there is no question raised about the validity of its execution and delivery.

After a hearing on the merits, the chancellor determined that the deed of February 11, 1971 conveyed a remainder interest in the real property to Charles M. Thomas and Betty Jean Bailey, and upon the death of C. Evans Thomas, title vested in them; that neither the estate nor Pearl G. Thomas had any interest in the real estate; that Betty Jean Bailey and Charles M. Thomas were not estopped to claim an interest adverse to Pearl G. Thomas by their execution of the sworn petition alleging that the property belonged to the estate; and, that Betty Jean Bailey and Charles M. Thomas were mistaken when they filed said petition and accepted a deed from Pearl G. Thomas purporting to convey her interest in the property to them subject to a life estate.

Pearl G. Thomas, the appellant, first assigns as error "The lower court erred in refusing to enforce specific performance of the agreement among the parties as evidenced by the deed executed by appellant to appellees."

In support of this proposition, the appellant cites Hutton v. Hutton, 239 Miss. 217, 119 So.2d 369 (1960), where it is said . . . (T)he general rule, in reference to the enforcement of specific performance of contracts, is that 'the contract must be specific and distinct in its terms, plain and definite in its meaning, and must show with certainty that the minds of the parties had met and mutually agreed as to all details upon the offer made upon the one hand, and accepted upon the other. If any of these requisites be lacking, specific performance will not be decreed by a court of equity.' (239 Miss. at 230, 119 So.2d at 374).

Pearl Thomas argues that her deed to Betty Jean and Charles met all of the above requirements. She also points out that the deed was executed by her at the suggestion and request of the appellee, Charles Thomas, and that the appellee, Betty Jean Thomas Bailey, encouraged execution of it, and that they accepted the deed and filed it for record.

Assuming arguendo that the deed constituted a contract between the parties, there could have been no meeting of the minds of the parties resulting in a mutual agreement, when all of the parties were acting under the mutually erroneous belief that the commercial property was a part of the assets of the estate when, in fact, it was not. ¹ In the absence of some other compelling reason, Mrs. Pearl G. Thomas may not, as a result of her attempted benevolence, in deeding what she thought was her one-third interest in the commercial property to Charles and Betty Jean, successfully claim ownership to what she would have reserved a life estate in the rents and profits of the commercial property when she had no interest in the property to convey or reserve. Mrs. Pearl G. Thomas had no interest in the property since it had been conveyed to Charles and Betty Jean by the deceased prior to his death, and consequently she could not reserve any rights therein.

The appellant next contends that "The lower court erred in refusing to enforce the agreement of the parties as to settlement of the estate."

In support of this contention, the appellant cites Strong v. Cowsen,197 Miss. 282, 19 So.2d 813 (1944), which stands, in part, for the proposition that compromises, having for their object the settlement of family difficulties or controversies, are favored at law and in equity, if at all reasonable, and that the termination of such controversies are considered a valid and sufficient consideration for the agreement, and the court will go further to sustain it than it would under ordinary circumstances. However, in this case, there had not been any controversy between the parties over individual rights nor was there any dispute or any adversary litigation over their rights either prior to or at the time of the execution of the deed by Mrs. Pearl Thomas to Charles and Betty Jean. In short, there was no family settlement or compromise to be enforced.

The appellant next argues that "The lower court erred in failing to find that appellees were estopped, legally, equitably and judicially from asserting that appellant was not their cotenant."

In order to establish equitable estoppel, a party must show a change of position in reliance upon the conduct of another and detriment caused thereby. Birmingham v. Conger, 222 So.2d 388 (Miss.1969). In the case Sub judice, there was no change in position by the appellant in reliance upon appellees' conduct nor has the appellant suffered any detriment or injury.

On the other hand, judicial estoppel does not require evidence of reliance and injury, as does equitable estoppel, and is based on expedition of litigation between the same parties by requiring orderliness and regularity in pleadings. Great Southern Box Co. v. Barrett, 231 Miss. 101, 94 So.2d 912 (1957). It arises from the taking of a position by a party to a suit that is inconsistent with a position previously asserted in prior litigation. Banes v. Thompson, 352 So.2d 812 (Miss.1977); Wright v. Jackson Municipal Airport Authority, 300 So.2d 805 (Miss.1974); Sullivan v. McCallum, 231 So.2d 801 (Miss.1970).

In this regard, the appellant argues that the appellees, by executing a sworn petition in which they alleged that...