Yazoo Lumber Co. v. Clark

• Decision Date: 15 February 1909
• Citation: 48 So. 516,95 Miss. 244
• Court: Mississippi Supreme Court
• Parties: YAZOO LUMBER COMPANY v. ALICE B. CLARK ET AL

48 So. 516

95 Miss. 244

YAZOO LUMBER COMPANY v. ALICE B. CLARK ET AL

Supreme Court of Mississippi

February 15, 1909

FROM the chancery court of Yazoo county, HON. G. GARLAND LYELL Chancellor.

The lumber company, appellant, was complainant in the court below; Mrs. Clark and others, appellees, were defendants there. From a decree in favor of the defendants, other than Mrs. Clark, the complainant appealed to the supreme court and Mrs. Clark prosecuted a cross-appeal.

H. H Breeland, a married man, living with his wife, conveyed his homestead with general warranty to his son, J. W. Breeland the wife not joining in the conveyance. Thereafter J. W Breeland and wife conveyed the land to Mrs. M. M. Breeland, the wife of H. H. Breeland. At the same time Mrs. M. M. Breeland executed a deed in favor of J. W. Breeland and wife to certain other property in another county; her husband, H. H. Breeland, joining with her in the deed. After the death of H. H. Breeland, Mrs. M. M. Breeland, his widow, conveyed the same land with general warranty to her daughter, Mrs. Shackouls, and thereafter Mrs. Shackouls conveyed same to the Yazoo Lumber Company. Thereafter Mrs. Clark and the other heirs at law of H. H. Breeland, who had since died, appellees, brought suit in ejectment against the Yazoo Lumber Company claiming that the land did not pass from their ancestor, H. H. Breeland, by the deed from him to J. W. Breeland, because it had not been executed by his wife. This suit was instituted by the lumber company, appellee, defendant in ejectment, to enjoin the ejectment and confirm its title, claiming that the deed from H. H. Breeland to J. W. Breeland was executed in trust, and that the deed from J. W. Breeland to Mrs. M. M. Breeland was executed in compliance with the understanding between the parties, had at the time of the execution of the first conveyance mentioned, in which the wife of the homesteader did not join, although there are no recitations in any of the deeds to this effect, and the proof showing a prior agreement that it was to be held in trust was inconclusive. The court below decreed in favor of all of the defendants except Mrs. Clark, holding that she was estopped to recover any interest in the land because she had made an affidavit at the time the deed to appellant was executed, which affirmed that she was the same preson as Mrs. Alice J. Clark, from whom her father, the homesteader above mentioned, bought the land and that the affidavit was made to clear up the claim of title thereto. She testified that, at the time she made such affidavit, nothing was said to her about her interest in the land in controversy, and that she did not know anything about the conveyance of her father, H. H. Breeland, to J. W. Breeland.

Affirmed on direct appeal; reversed on cross-appeal.

Barnett & Perrin, for appellant and cross-appellee.

The testimony conclusively shows that it was never intended by H. H. Breeland or John W. Breeland that the latter should become the real owner of the land, but that he held the title in trust, a parol trust it is true, but made effectual by the conveyance of John W. Breeland to his mother on April 12th, 1898, less than a year after the conveyance to him. Metcalf v. Brandon, 58 Miss. 847.

It was claimed in argument below that there was no trust because at the time of the conveyance to John W. Breeland by his father, the father did not name the beneficiary, and that unless this were done at the time of the creation of the trust, the trust must fail, and the naming of a beneficiary subsequently would be too late. This is not the law. An absolute conveyance can not, of course, be afterwards converted into a trust, but if the conveyance is intended when made to create a trust, it retains that character and the beneficiary can be subsequently named by the creator of the trust. If the creator of the trust die without doing so the beneficiary cannot be supplied. We think it will be found that where the trust does not name the beneficiary the objection is made because the statute requiring the creation of trusts to be in writing has not been fully complied with. Where the trust has been executed, whether parol or written, the naming of the beneficiary at the time of the creation of the trust does not matter. 1 Perry on Trusts, citing 17 N.W. 922, 34 N.E. 487, and Ireland v. Geraghty, 11 Biss. (U.S.) 465.

It is true that if H. H. Breeland had named any one else than his wife as the beneficiary, to the extent of the homestead, such beneficiary could not have taken, as in that case the point could successfully be made that the wife had not signed the deed creating the trust. But where the wife is named as the beneficiary the legal effect is the same as if the husband had conveyed directly to the wife. In fact as the law was before the Code of 1880 the husband could only divest himself of the legal title by conveying to a trustee for the benefit of his wife. This court does not seem to have directly decided that a homestead can be conveyed by either spouse to the other, without the grantee joining therein, but the overwhelming weight of authority is that such conveyance is good. Turner v. Bernheimer, 10 So. 750. In this case Judge McClellan of the supreme court of Alabama gives the reasons for upholding such conveyances. One of his positions is that such conveyance is good because the homestead character of the property is not at all affected; it still continues to be a homestead and must remain so until both husband and wife join in its conveyance. This is true of this case, that notwithstanding what was done the homestead continued to be such, its character was not destroyed nor attempted to be destroyed, and was not conveyed by the wife until after the death of her husband.

It may be urged, however, that while it was understood the beneficial estate was not to vest in John W. Breeland, yet not naming a beneficiary in the conveyance made by the husband, it was his intention that the land conveyed be held in trust for himself. H. H. Breeland certainly did not intend for the land to be reconveyed to him, such reconveyance would have defeated his purpose in making the conveyance, namely to prevent his creditors subjecting the land to the payment of his debts. But assuming that he did intend the land to be held in trust for himself when the conveyance to John W. Breeland was made, the statute requiring the husband and wife to join in conveyance was not violated. The trust created was a dry one, the trustee nor any other person except the beneficiary to be named was to derive any benefit from it, and the equitable estate retained by the father and husband could not have been conveyed without the joining of the wife. The land still remained a homestead. The object of the statute is to preserve the homestead as such unless both...