Wilbourn v. Wilbourn

• Decision Date: 25 October 1948
• Docket Number: 36827.
• Court: Mississippi Supreme Court
• Parties: WILBOURN v. WILBOURN.

37 So.2d 256

204 Miss. 206

WILBOURN v. WILBOURN.

No. 36827.

Supreme Court of Mississippi

October 25, 1948

Suggestion of Error Overruled Dec. 13, 1948.

See 37 So.2d 775.

Stone & Stone, of Coffeeville, for appellant.

John Horan, of Water Valley, for appellee.

L. A SMITH, Sr., Justice.

Appellee filed a suit in the Chancery Court of the First District of Yalobusha County praying cancellation of a deed, whereby he and his wife had conveyed to appellant, their son, the lands involved. The original bill was based on several grounds, but only two of them are of any importance in the record considered by the chancellor, and necessary for us to review. The issues here are that the deed was never delivered; and that the son, as grantee therein, never accepted it.

The original bill did not waive answer under oath, and the answer was sworn.

The learned chancellor rendered a decree for the father, and the son appealed.

The answer of the son, appellant, categorically denied the averments of the original bill, and charged affirmatively that he did accept the deed and instructed his father to have it recorded, which was done. He also answered that 'it is not denied that the deed was not delivered after defendant left the army. It had been delivered before the defendant left the army' but he indulged the presumption that the mother's destruction of the deed by burning, as averred in the original bill, occurred before the defendant left the army. The answer further charged that 'And the defendant states again that the proposition of making the deed had been explained to the defendant by the complainant and accepted and carried out by the making of the deed and the acknowledgment of same and delivery and recording of same, and it all constituted a closed matter until the flare-up came after the defendant had come back from the war and entered into possession of the property. And it is here denied that the defendant has ever violated any of the terms and conditions of this deed or any duty that he had in the light of this deed * * *; and the deed was accepted as written and acknowledged and as recorded, and never in the slightest degree by word or deed declined.'

Appellant's mother, who had joined in the execution of this deed conveying their homestead, had departed this life before the trial. The father, appellee, testified that when the deed in controversy was executed, his son was absent in the army, and that he, the father, had it put upon record, and thereafter received it from the clerk and carried it home with him, all while the son, as stated, was in the army. Furthermore, he claimed never to have delivered it to the absent son, and later his deceased wife, a singer of the deed, destroyed it, as stated supra. During all of this time, appellee had been in possession of the land, and had never relinquished it.

On return from the army, however, the appellant married, and he and his wife and infant child moved into the home on the place then also occupied by appellee. It is in dispute whether or not appellant's mother was then living or not, but we do not deem it of judicial importance on the issues of the case, conditions were unpleasant, and the son removed a short time before suit was filed. Appellant also testified his son declared he did not want the place and 'wouldn't have it', which was in answer to a letter the father wrote his soldier-son overseas. He also said the son repeated this refusal after his return. The father admitted that after receiving the alleged declination from overseas, he persisted in his purpose of deeding the land to his absent son, and he and his wife went ahead and executed the deed, which was then lodged with the clerk for recording, and after it was recorded, he carried it home where it remained until his wife destroyed it before the son's return. The son never saw the actual deed.

The fact that the wife of the grantor may have protested against the execution of the deed to her husband's homestead, in which she finally joined, however, we think tends to show she realized that the title of the property was being passed to the son by the execution and recordation of the conveyance, and when she yielded her objection in that regard, and executed the deed with her husband, and permitted him to take charge of it she is bound by his act in delivering the conveyance to the clerk for recordation.

It is true that later she took the recorded deed from where it was being kept in the home and burned it before the son's return from the war, but she could not thereby destroy the record title which was then vested in the son. The delivery of the deed to the clerk and its recordation, under the circumstances, had not only vested the record title in the son, but also the legal title. The son could not thereafter divest himself of such title except by executing a conveyance back to the grantor or to someone else.

If there had been a valid judgment enrolled against the son in the county at the time the conveyance was executed and recorded, can it be said that either the son or his father would be heard to deny that the title had become vested in the son, whether the judgment creditor had parted with anything on faith of the said recorded conveyance or not? Of course, no rights of a judgment creditor or innocent purchaser are here involved, but the fact that the son could have conveyed a good title following the recording of this conveyance in his favor is significant that he had acquired such a title.

The father answered 'yes' to this question while on the witness stand, after stating that he was aged seventy-five years and in failing health, 'and on that account, the probability being that you would never see him and have a chance to hand the deed to him like that (illustrating), you substituted this plan to write it out and acknowledge it and bring it to the clerk and put it on record for him after you had notified him of your intention, ain't that so?' He further testified that, since he knew he could not make manual delivery to his son, under the circumstances of his absence, the execution and recording of the deed was to 'avoid that impossible situation.'

The fact that the grantor could have, but did not, mail the recorded deed to his son is not significant on the question of whether or not he intended to deliver the deed, for the reason that since the son was in the army, and his movements uncertain, his father would necessarily have known the hazard of its loss in the mails or by the son while in the armed forces.

Appellee's daughter, the sister of appellant, also testified, on behalf of her father, that appellant wrote her father that he did not want the place, that is, the land, and not to make the deed to him. On cross examination, it was shown she had considerable feeling against her brother for his course, and because of her opinion that he mistreated his parents.

The appellant-son, in his own behalf, testified that when he received the letter from his father relative to conveying the land to him, he did not refuse it, but told his father 'to do as he would like to do.' To this, his father replied that the son was not to write any more, 'he was going ahead and make it to me, make a deed to the place.' He also testified that after his return home, he discovered that his father 'had done as he had said and had signed and recorded' the deed. He never saw the deed or refused it, because it had been burned as set out above, and when he learned from the records in the clerk's office the facts of the execution and recordation of the deed he soon moved himself and family into the residence on the place conveyed him, then occupied by his parents. He continued to live there for approximately eleven months, when his father, at the instigation of appellant's brothers and sisters made it so unpleasant that he moved out. About a month later his father sued him to cancel the deed. Appellant still claimed the land.

As stated, ante, the learned chancellor granted the prayer of the original bill of the father, and cancelled the deed to the son, on the theory that there was no delivery of the deed by the parents, and no acceptance thereof by the son, valid in law. In his opinion, the chancellor stated: 'Now it boils itself down to one proposition, as to whether there had been such a delivery of this deed by the placing of same upon the record which would cause the title to pass.' And, also, he declared that: 'One must intend to convey and the other willing to accept.' In the final decree, it was ordered that the deed 'is hereby cancelled of record and declared void, not having been actually delivered, * * *'.

It is not necessary for us to consider the action of the chancellor in overruling appellant's demurrers to appellee's original bill, since we have concluded that the decree must be reversed, and a decree entered here for appellant. We, therefore, consider the assigned errors that the court erred in cancelling the deed, and in the conclusion there was no delivery thereof.

Appellee's burden to show an intention not to effect delivery is not supported by the preponderance of the evidence. If it be conceded that the son protested against the conveyance, the persistence of appellee in his intention merely emphasized a determined purpose by the grantors. Such purpose was effectuated by delivery of the deed, after proper execution to the chancery clerk for recording. See Ladner v. Moran, 190 Miss. 826, 1 So.2d 781, citing Young v. Elgin, Miss., 27 So. 595; also Palmer v. Riggs, 197 Miss. 256, 19 So.2d 807, and Frederic v. Merchants & Marine Bank, 200 Miss. 755, 28 So.2d 843, 846. In the Frederic case the Bank retained the deed, after its execution, in its possession in its own vault, but the...