Wilborn v. Balfour

• Decision Date: 16 November 1953
• Docket Number: No. 38950,38950
• Citation: 67 So.2d 857,218 Miss. 791
• Parties: WILBORN v. BALFOUR et al.
• Court: Mississippi Supreme Court

Page 857

67 So.2d 857

218 Miss. 791

WILBORN v. BALFOUR et al.

No. 38950.

Supreme Court of Mississippi.

Nov. 16, 1953.

W. H. Fisher, and Vincent W. Vorder Bruegge, Memphis, Tenn., for appellant.

Chatham & Walker, Hernando, for appellees.

McGEHEE, Chief Justice.

On August 1, 1951, Sam Balfour, a mentally incompetent, now deceased, suing by next friend, and his wife Edna Balfour, both aged and infirm Negroes, and residents of De Soto County, Mississippi, filed this suit against the appellant, W. C. Wilborn, a white man of Memphis, Tennessee, to have declared to be a deed of trust a certain warranty deed, absolute in form, purporting to have been executed by both of the complainants in favor of the defendant on the 8th day of May 1951, conveying to him their 101-acre farm in De Soto County, but which deed of conveyance was signed as to both names of the alleged grantors by the complainant Edna Balfour, and at a time when her husband, Sam Balfour, was about 78 years of age, and was sick and his mental faculties impaired to such an extent that he was incapable of executing a valid conveyance.

Insofar as the record shows Sam Balfour, owner of the land, was not advised that such a conveyance had been executed at any time prior to his death on November 4, 1951. Neither he nor his wife appeared before the officer who took the acknowledgment. The purported conveyance, together with a purported power of attorney, similarly executed, were taken to the officer for acknowledgment by A. V. Balfour, son of the purported grantors, and by one Van Pelt, a Negro real estate agent of Memphis, who is alleged by the complainants to have been the agent of the defendant, W. C. Wilborn, and who is alleged by the defendant to have been the agent of the complainants in procuring the execution and delivery of the said instruments to the said defendant.

The purported deed recited a cash consideration of $2,000 for the land which the trial court found, on conflicting evidence, to be reasonably worth $7,500 at the time of the execution of the said two instruments of writing. It was shown that there was an indebtedness due and owing to T. P. Flinn, Jr., Executor of the Estate of T. P. Flinn, deceased, in the sum of $1,272.50, secured by a mortgage or deed of trust on the land in question; that defendant, upon receipt of these instruments of writing through said Van Pelt, delivered to the said real estate agent one check for the amount of the indebtedness due T. P. Flinn, Jr., Executor, payable to the latter, and one check for $519.74 payable to Van Pelt and the complainant Sam Balfour; that the check for the indebtedness of $1,272.50 was delivered to the said executor, who thereupon cancelled and satisfied of record the mortgage or deed of trust held by him as security for the same; that the other check of $519.74 was endorsed by Edna Balfour in the name of her husband Sam Balfour, and was endorsed and cashed at a local bank by the said Van Pelt, who paid unto A. V. Balfour the sum of $375, with which to complete the making of a crop on said land during that year, as alleged tenant of the purported grantee W. C. Wilborn, defendant herein, and the remainder of the proceeds of said check was retained by Van Pelt as his alleged fee from the complainants for procuring a purchaser for the land and obtaining a certificate of title thereto for the purchaser, according to the testimony of the defendant, who further testified that he deducted $202 from the consideration of $2,000 to satisfy an indebtedness from Van Pelt to him upon the claim of Van Pelt that he was entitled to also retain said amount as part of his alleged fee from the grantors for selling the land.

But according to the testimony offered on behalf of the complainants, the two checks were to represent the proceeds of a loan in the sum of $1,792.24 obtained by Van Pelt from the defendant, W. C. Wilborn, as he stated to them, and to be secured by a deed of trust on the land, with the indebtedness repayable over a period of five years, pursuant to the representations of Van Pelt as to the nature and character of the instruments then purportedly executed by the complainants in favor of the defendant.

The bill of complaint sought to have the court declare the deed of conveyance to be a deed of trust, and to cancel the deed of conveyance as being void, both on the ground of the manner of its execution and because of the representations of Van Pelt as to the nature and character of the instrument which the complainant Edna Balfour had been induced to execute on behalf of the complainant Sam Balfour and in her own behalf as his wife, the title of the land being invested in the complainant Sam Balfour alone. The bill of complaint recognized liability on the part of the complainants for the consideration actually paid therefor by the defendant.

The original bill of complaint was filed in the name of Sam Balfour and his wife Edna Balfour, on the First day of August 1951, as aforesaid, and did not seek the recovery of any damages as originally drawn and filed. However, after the filing of the answer and cross-bill of the defendant W. C. Wilborn on November 24, 1951, averring that he had obtained a warranty deed, accompanied by the purported power of attorney from the complainants to the said Van Pelt, as the alleged agent of the complainants for the sale of the land, and had purchased the same in good faith, and under which cross-bill he sought to have himself declared to be the owner of the land in question and to have the bill of complaint dismissed, and which cross-bill contained a prayer for general and special relief, if mistaken in the relief prayed for, the complainants obtained an order of revival of the suit on March 13, 1952, and obtained on June 28, 1952 leave to amend the original bill of complaint so as to sue for damages, both actual and punitive, in the sum of $5,000 in favor of the heirs at law of Sam Balfour, deceased, including the widow Edna Balfour and their six adult children, among whom was the son A. V. Balfour, who had on May 14, 1951 executed a rental agreement in favor of the defendant W. C. Wilborn, agreeing to pay as rent one-third of all of the agricultural products raised on the land for the year 1951, as alleged in the cross-bill of the defendant, and which rental agreement specified that the land being rented was the same land that had been purchased by the defendant from the original complainants on May 8, 1951.

It appears from the evidence that the son A. V. Balfour had actively participated in the negotiations between his mother, Edna Balfour, and Van Pelt which resulted in the execution of the instruments of writing hereinbefore referred to, but he, as a witness, corroborated the testimony of Edna Balfour to the effect that Van Pelt represented the instruments to be a deed of trust on the land to secure the funds with which to pay off the prior deed of trust in favor of T. P. Flinn, Jr., Executor, and for the completion of the crop being grown on the land by A. V. Balfour, who lived with his father and mother during the year 1951; that A. V. Balfour further testified that he accompanied Van Pelt in calling upon the officer to take the acknowledgment of his father and mother to the instruments of writing in question, and that neither of the purported grantors were present; and that he later signed the rental agreement in favor of the defendant W. C. Wilborn on the assurance made to him that upon repayment of the indebtedness the purported grantors could keep the land, the actual possession of which was never surrendered by them other than by his executing the rental agreement to the defendant under the circumstances hereinbefore stated.

It is conceded that A. V. Balfour, acting on behalf of his father and mother with whom he lived, as aforesaid, first learned through a friend and acquaintance that Van Pelt, the real estate agent in Memphis, could probably assist them in obtaining a loan with which to pay off the indebtedness to T. P. Flinn, Jr., Executor, becoming due on May 28, 1951, and also with which to enable A. V. Balfour to complete his crop on the land during that year; that hence Van Pelt was contacted in Memphis accordingly, with the result that he came down into De Soto County and inspected the land for this alleged purpose.

Thereafter, the defendant also visited and inspected the land, in company with Van Pelt, prior to the execution and delivery of the two instruments of writing in question. However, he testified that he had theretofore informed Van Pelt that he was not interested in making a loan on the land, but that he was willing to buy it; that Van Pelt had later reported to the defendant, prior to the inspection of the land by the latter, that the original complainants had decided to sell; and that it was after this inspection by the defendant that he agreed to pay the consideration recited in the deed as the purchase price therefor.

The said A. V. Balfour testified that he was present when the defendant inspected the land and that Van Pelt told the witness, in the presence of the defendant, in substance, that 'Mr. Wilborn here is the man that I am going to borrow the money from,' and that nothing was then said about the defendant intending to buy the land, and that when Van Pelt later returned with the two instruments of writing to be executed, he represented that the instruments consisted of a deed of trust on the land as security for the money. Also, Edna Balfour testified that Van Pelt assured her that what she was to sign was a deed of trust; that there was no need of her taking the time to read the papers, and that if she did take the time to do so, the bank at Hernando, in De Soto County, would be closed before they could get the checks cashed; and that relying upon said representation, she signed her name and that of her husband, Sam Balfour, to the papers; whereas the defendant testified that the...