Walker v. Woods

• Decision Date: 22 May 1933
• Docket Number: 30263
• Citation: 144 So. 703,166 Miss. 471
• Court: Mississippi Supreme Court
• Parties: WALKER et al. v. WOODS et al

144 So. 703

166 Miss. 471

WALKER et al. v. WOODS et al

No. 30263

Supreme Court of Mississippi

May 22, 1933

(Division B.)

1. EXECUTORS AND ADMINISTRATORS.

Executor held incompetent as witness to contradict his final account.

2 MORTGAGES.

Where husband could not purchase at trustee's sale, wife was also incapable of purchasing.

3. REFORMATION OF INSTRUMENTS.

It was incompetent to impeach deeds to deceased and from deceased to defendant by parol evidence in view of long delay in seeking correction, which prejudiced rights of remaindermen, deceased being life tenant.

4. MORTGAGES. In action for possession of land brought by remaindermen against one claiming under foreclosure sale evidence that trust deeds were marked "satisfied" on record was admissible.

It was not error for the court to admit fact that deeds of trust were marked "satisfied" on record since such evidence was competent as a circumstance taken in connection with evidence tending to show that the deeds of trust were satisfied and canceled prior to the land sale.

ON SUGGESTION OF ERROR.

(Division B. May 22, 1933. Suggestion of Error Overruled May 22, 1933.)

[148 So. 354. No. 30263.]

Division B

December 5, 1932

Suggestion Of Error Overruled May 22, 1933.

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

Action by Jasper Woods, Jr. and Sr., against Lucretia Walker and another. From an adverse judgment, defendants appeal. Affirmed.

On suggestion of error. Suggestion of error overruled. For former opinion, see 144 So. 703.

Affirmed.

Owen & Garnett, of Columbus, and Stovall & Stovall, of Okolona, for appellant.

No general rule is better settled than that fraud cannot be inferred and can be charged only in specific terms.

Griffith's Chancery Practice, secs. 501, 589; Jones v. Hubbard, 90 S.W. 1137, 1141, 193 Mo. 147.

The plural unit idea of husband and wife as defined in the common law no longer prevails. They are separate legal personalities, with separate property rights; neither has any control over the property rights of the other, except as to homestead rights.

Sections 1940 and 1778, Miss. Code of 1930.

Lucretia Walker was not concerned, in law, with the administration of Henderson Walker's estate, nor with the sufficiency or the insufficiency of the executor's account. She, Lucretia Walker, not George, her husband, nor Sylvia, the widow and life tenant, was the purchaser at the trustee's sale, and according to the undisputed evidence she paid the money. Her title was acquired, not by a pretended sale as alleged in the bill, but by a genuine sale directed by the attorney for the trust-deed creditors, made in good faith, and in conformity with law; and her title, for which she paid her own money, cannot be defeated by any matter of accounting between the executor, the creditors, and Sylvia Walker. She had the same right to purchase the trustee's sale that anyone else had.

The undisputed evidence of the executor, the attorney, and the trustee, shows beyond cavil that the trustee's sale was not pretended, but regular and valid; that the deed from Sylvia to Lucretia Walker was not pretended, but in good faith to correct a scrivener's error.

It should not be forgotten here that the answer distinctly stated that Lucretia Walker, not Sylvia Walker, was the real purchaser. It was proper to prove who was the real purchaser, as the authorities everywhere show.

Greenleaf on Evidence, sec. 279 (15 Ed.); sec. 282, Greenleaf; sec. 296a, Greenleaf; Peacher v. Strauss, 47 Miss. 316; Whitworth v. Harris, 40 Miss. 483, 488; Cleveland v. Burnham, 25 N.W. 407, 409; McMahon v. McGraw, 26 Wis. 614; Bancroft v. Grover, 23 Wis. 453; Wakefield v. Brown, 37 N.W. 788; Salmer v. Lathrop, 72 N.W. 570, 572; Andrews v. Dyer, 16 A. 405; Simmons v. Allison, 24 S.E. 716, 721; Murray v. Blackledge, 71 N.C. 492; Brownwood v. Pegwood & Shank Co., 123 A. 171; Jacobs v. Benson, 39 Me. 132; Cox v. Belthoover, 11 Mo. 142; Doe v. Doe, 16 Ga. 520; Peabody v. Brown (Mass.), 10 Gray 45; Scanlan v. Wright (Mass.), 13 Pick. 423.

The deeds complained of were manifestly made in good faith, and the issues made by the bill and answer involved not charge of falsity or bad faith in the executor's account; nor does the bill charge any fraud or collusion between the executor and his wife Lucretia on the one hand, or between the trustee and Sylvia on the other.

Griffith's Chancery Practice, sec. 567.

The rule is well settled that every material fact on either side must be set up in pleadings, and that the court can no more consider what is proved, but not alleged, than what is alleged, but not proved.

Fletcher's Equity Pleading and Practice, page 650; 1 Whitehouse on Equity Practice, page 561.

That the trust deeds were satisfied and cancelled before the trustee sold pursuant to their terms, is essential to the success of appellees' case. They made no pretense of proving the time and the genuineness of the alleged cancellations; and, therefore, an allegation essential to their case was not sustained by adequate proof.

With the decisions of this court which forbid the executor and his wife to purchase at a sale of land procured or controlled by the executor, we have no quarrel; but there is a well-established and a logical distinction between a sale of land procured or controlled by the executor, and a sale made without the procurement of the executor, and entirely beyond his control. There is no logical reason why a sale procured and carried out without the procurement or control of the executor, should fall under the same condemnation as a sale procured and controlled by the executor. To hold that a purchase at a sale not procured or controlled by the executor is fraudulent per se, as against public policy, is to go directly in the face of what we believe is the great weight of authority.

The limitation on the right of an executor to purchase at a sale of testator's land, is where the sale was procured by him or conducted under his direction.

24 C. J. 635, sec. 1591; Tomlinson v. Detestatius, 3 N.C. 284; Kelley's Estate, 146 A. 260, 261; Chorpennings Appeal, 32 Penn. State, 315; Allen v. Gillette, 127 U.S. 589, 31 L.Ed. 271, 274; Mulherin v. Rice, 32 S.E. 865.

We submit that the court erred in holding that the trust deeds "were marked satisfied on the record" and that the evidence was a circumstance to be taken with other evidence tending to show that the trust deeds were satisfied and cancelled prior to the land sale. As cancellations they were utterly inadequate under the statute relating to cancellation of trust deeds.

Section 2451, Code of 1892.

They were not marginal entries of satisfaction. A marginal entry means an entry written on the margin of the record, and writings pasted on the record are in no sense marginal entries, but are separate instruments.

The court erred in holding that George Walker's testimony was intended to contradict and impeach his account as executor; and that his wife, as purchaser at the trustee's sale, could not use him as witness. If his account as filed had contained no reference to the barber shop and other real estate, and disbursements made therefrom, it might be proper to say that he could not afterwards add to it any references to the barber shop and other real estate; but the account itself, on its face, showed that he was accounting for certain property and sums not in his hands as executor. It was unusual on its face. Why was it not subject to explanation? and in what sense was his explanation a contradiction or impeachment of it? and who but Sylvia, the life tenant, then had a right to complain?

If, as the court said, Lucretia Walker may impeach the executor's report, then under section 1527 of the Code of 1930 she is entitled to call her husband as a witness; otherwise, in this class of cases the code section is a nullity, and doesn't mean anything as to Lucretia Walker; and yet the Code says distinctly, in "all cases civil or criminal" husband and wife may be introduced as witnesses for each other.

It is not the duty of a life tenant to obliterate prior debts against the land, and if he does so he has the right to call on the remainderman for contribution. If the executor of Henderson Walker paid to the life tenant, Sylvia, sums necessary for the handling of the real estate, excepting, the rents for the year of the testator's death, which went to the executor pursuant to the statute, he delivered to her no more than what was hers; and he would have been liable to her if he had not done it.

21 C. J. 958, sec. 94; Peck v. Glass, 6 How. 195; Callicott v. Parks, 58 Miss. 528.

We urge there was error in the holding that it was incompetent to impeach the deeds to Sylvia Walker and from Sylvia to Lucretia Walker by parol evidence after the death of Sylvia Walker. Among other reasons for that holding the court sets up laches. Unless properly raised by the pleadings we don't understand that the question of laches can be raised as an objection to evidence. It is an affirmative defense always, and as such must be alleged and proven.

Griffith's Chancery Practice, sec. 301; 3 Jones on Evidence 2708; Whitney v. Cowan, 55 Miss. 626.

The rule which forbids the varying of written instruments by parol proof applies only to the parties to the writing.

1 Greenleaf on Evidence, sec. 279; 2 Wharton on Evidence, sec 923; Rice v. Troup, 62 Miss. 186; 2 Taylor on Evidence 1149; Magruder v. Palmer, 69 So. 498; Whitney v. Cowan, 55 Miss. 626; Hilgemeier v. Bower Mfg. Co., 139 N.E. 691, 695; Aultman Engine Co. v. Greenlee, 111 N.W. 1007, 1009; 22 C. J. 1292; 4 Jones on Evidence 2842; Peacher v. Strauss, 47 Miss. 316; Whitworth v. Harris, 40 Miss. 483, 488; Cleveland v. Burnham, ...