Threatt v. Threatt

• Decision Date: 19 November 1951
• Docket Number: No. 38082,38082
• Citation: 212 Miss. 555,54 So.2d 907
• Parties: THREATT v. THREATT.
• Court: Mississippi Supreme Court

Page 907

54 So.2d 907

212 Miss. 555

THREATT v. THREATT.

No. 38082.

Supreme Court of Mississippi, Division A.

Nov. 19, 1951.

Roy N. Lee, James W. Lee, Forest, for appellant.

A. B. Amis, Jr., Newton, for appellee.

McGEHEE, Chief Justice.

This is a suit to cancel a deed of record from the appellant to the appellee for 120 acres of land on the ground that the same never became effective because of nondelivery thereof by the former as grantor to the latter as grantee.

In September 1937, the appellant, E. M. Threatt, then residing at Eastland, Texas, and who was the owner of the fee simple title of the 120 acres of land in Newton County, concluded to sell the same to the appellee, O. J. Threatt, after having first conducted some preliminary negotiations in regard thereto through correspondence by mail with his uncle, J. D. Threatt, who is the father of the appellee, and who resided at Collinsville near the land and had been looking after the same for the said owner.

The land had been previously sold for delinquent taxes and the title would have matured on September 17, 1937, unless the same had been redeemed prior thereto from the tax sale. The sum of $129.09 was the amount required to be paid to effectuate the redemption.

The proof discloses that on August 27, 1937, the appellant, E. M. Threatt, wrote his uncle, J. D. Threatt, at Collinsville, that he had made arrangements to get the money from a bank to redeem the land, but that he would have to pay it back to the bank at $20 per month which would work a hardship on him in view of his then financial circumstances, and stated further that 'We (meaning he and his wife) have talked it over and have decided to sell the land to Oliver (the appellee, O. J. Threatt) if he will give me anything reasonable for it. Tell Oliver he can make me his best proposition and if I accept it, I will let him know and if I reject it I will go get the money from the bank and pay the taxes and keep the land.'

That on September 4, 1937, a letter in reply to the one of August 27th was sent by mail to the appellant, E. M. Threatt at Eastland, Texas, purporting to have been signed by J. D. Threatt, in which it was stated, among other things, 'Oliver said he would give you $300 for the place and pay the taxes on it and pay 150 in '38 and 150 in '39. He said that was the best he could do, and there are people that is just waiting for the time to come so they can pick it up. He wants you to give him a deed for the place and then take a deed of trust for security.'

The appellant testified, and it is undisputed, that Sadie, the daughter of J. D. Threatt wrote the letters for her father in regard to the matter, since he was a very elderly man, partially blind. It is also undisputed that the appellee had no correspondence whatever with the appellant in regard to purchasing the land. He was asked by his attorney 'Had you had any communication from Mr. E. M. Threatt prior to the time you said you received this deed in the mail?', and he replied 'No, my dad is the one.'

On September 14, 1937, the appellant, after having on the previous day executed a deed to the land in favor of the appellee, O. J. Threatt, wrote to his uncle, J. D. Threatt, a letter in which he stated, among other things, the following: 'I am herewith enclosing a deed to my land for Oliver. I am also sending a deed of trust all ready to sign and two notes for $150 each, one due December 15, 1938, one due December 15, 1939. I want you to have Oliver and Gracie to sign these notes and deed of trust before a notary public or justice of the peace before you give him the deed * * * If for any reason Oliver does not pay the taxes by the 17th, please wire me collect. Your nephew, E. M. Threatt.' (Italics ours.)

The appellant testified that he mailed the original of the foregoing letter to J. D. Threatt in an envelope addressed to him at Collinsville, Mississippi, postage prepaid, through U. S. Mail, and that there were enclosed in the envelope with the letter the deed, the two notes, and the deed of trust on the land. The presumption is therefore that they were duly received by him, and it became incumbent upon the appellee, O. J. Threatt, to rebut this presumption by credible evidence so as to show that the deed, notes, deed of trust and the letter of instruction were not received by the addressee, J. D. Threatt.

It appears that at the time of the trial of this cause, the alleged addressee of the letter, which contained the deed, notes and deed of trust, had reached the age of 91 years and he was neither summoned to court nor his deposition taken by either of the parties to show his version as to what offer he had been authorized by his son Oliver to submit to his nephew, E. M. Threatt, for the purchase of the land, or on what terms and in what manner the acceptance of the offer was communicated to him from his said nephew as the owner of the land. Neither did the appellee, O. J. Threatt, offer as a witness his sister, Sadie, to prove what offer he had submitted through his father in her handwriting to the owner of the land as a purchase price thereof, it being undisputed that she was the person who wrote all the letters on behalf of J. D. Threatt to the owner of the land, as aforesaid.

Upon the trial, the appellee testified that he received in an envelope addressed to him the deed in his favor for the land in question through the mail at his mail box, which was located not far from the mail box of his father, J. D. Threatt; that when he went from his mail box to his home and opened the envelope which contained the deed, there was no letter, notes or a deed of trust enclosed therein; and that the envelope was opened at his home in the presence of his wife, who corroborated him as a witness in regard to the contents of the envelope when the same was opened. However, we are of the opinion that it is wholly unreasonable to suppose that E. M. Threatt, as owner of the land, and who had admittedly had all of his negotiations with his uncle, J. D. Threatt, and had, according to the undisputed testimony, received the letter written on September 4, 1937, by Sadie in the name of J. D....