Opinion
No. 40963.
January 12, 1959.
1. Deeds — equity — estoppel — grantee's return of deed to grantor as revesting equitable title in grantor — case in point.
Where father and mother executed and delivered an unrecorded deed conveying property to daughter but reserving a life estate and consideration therefor was love and affection but thereafter daughter, upon demand of a sister and mother, returned deed which was destroyed and more than 10 years later mother and father offered property for sale but daughter asserted rights under unrecorded deed to property, under facts of case, voluntary surrender of deed effected a reconveyance and daughter relinquished any claim thereunder and father and mother were revested with equitable title therein and since rights of third parties had not intervened they were entitled to a decree for reconveyance of the legal title.
Headnote as approved by Gillespie, J.
APPEAL from the Chancery Court of Madison County, C.D. WILLIAMS, Chancellor.
Wm. Harold Cox, Jackson; Ray, Spivey Cain, Canton, for appellant.
I. The destruction of the deed did not reinvest title to the property in the appellees. Whitton Hulbert v. Smith, Freeman Ch., pp. 231, 239; Burton v. Wells, 30 Miss. 688; McDaniel v. Johns, 45 Miss. 632; Partee, Admrx. v. Mathews, 53 Miss. 140; Lisloff v. Hart, 25 Miss. 245; McAllister v. Mitchener, 68 Miss. 672; Blacketor v. Cartee, 172 Miss. 889, 161 So. 696; Wilbourn v. Wilbourn, 204 Miss. 206, 37 So.2d 775; White v. Turner, 197 Miss. 265, 19 So.2d 825; Walters v. Rogers, 222 Miss. 182, 75 So.2d 461; 26 C.J.S., Sec. 175 p. 1186.
II. The Trial Court erred in holding that appellant was deprived of the enjoyment of her remainder estate in said land by Section 746, Mississippi Code of 1942. Ragsdale v. Ragsdale, 68 Miss. 92, 8 So. 315; Smith v. Smith, 211 Miss. 481, 52 So.2d 1; Harris v. Armstrong, 232 Miss. 192, 98 So.2d 463; Thomasson v. Kinard, 153 Miss. 398, 121 So. 109; Nichols v. Gaddis McLaurin, 222 Miss. 207, 75 So.2d 625, 78 So.2d 471; Garner v. Townes, 134 Miss. 791, 100 So. 20; Secs. 709-711, 746, Code 1942; 54 C.J.S. 807; A.L.I., Restatement of the Law (Property), Sec. 222 (f), Pts. 1-2.
III. The Trial Court erred in canceling the deed from the appellees to the appellant which they validly executed to her on December 7, 1946, as the Court found and adjudged. Morehead v. Morehead, 222 Miss. 161, 75 So.2d 453; Butterfield Lbr. Co. v. Guy, 92 Miss. 361, 46 So. 78; Hunt v. Davis, 208 Miss. 710, 45 So.2d 350; Mexican Gulf Land Co. v. Globe Trust Co., 125 Miss. 862,
88 So. 512; Wilson v. Combs, 203 Miss. 286, 33 So.2d 830; Secs. 1324-1325, Code 1942; 9 Am. Jur., Sec. 11 p. 359; 12 C.J.S., Secs. 3, 14, 56 pp. 943-45, 951, 1036.
IV. The Trial Court erroneously applied Section 746, Mississippi Code of 1942, without any pleading or proof to justify or support its decision thereon. Yazoo M.V. RR. Co. v. Kirk, 102 Miss. 41, 58 So. 710; Davis v. Davis, 210 Miss. 182, 49 So.2d 242; Gulfport Fertilizer Co. v. McMurphy, 114 Miss. 250, 75 So. 113; Green v. Johnson, 174 So. 552; Neely v. Johnson-Barksdale Co., 194 Miss. 529, 12 So.2d 924; Secs. 709-711, 746, Code 1942; 53 C.J.S. 1072; 54 C.J.S., Sec. 97 p. 807.
Barnett, Jones Montgomery, Jackson, for appellees.
I. In reply to appellant's Point I. Mauldin v. Howell, 212 Ark. 268, 205 S.W.2d 446; Brown v. Brown, 142 Iowa 125, 120 N.W. 724; Blacketor v. Cartee, 172 Miss. 889, 161 So. 696; 16 Am. Jur., Secs. 356-57 pp. 644-45; 26 C.J.S., Sec. 175 p. 1186.
II. In reply to appellant's Point II. Brown v. Brown, supra; Mauldin v. Howell, supra; Blacketor v. Cartee, supra; Bailey v. Sayle, 206 Miss. 757, 40 So.2d 618; Garner v. Townes, 134 Miss. 791, 100 So. 20.
III. In reply to appellant's Points III and IV. Garner v. Townes, supra; 54 Am. Jur., Sec. 35 p. 46; 89 C.J.S., Sec. 2 p. 712.
ON CROSS-APPEAL.
I. The Trial Court erred in admitting the testimony of Frank T. Scott attempting to establish an admission by Mrs. Charles Willie Johnson to the effect that she and her husband had both signed the deed, which admission was not shown to have been known to her tenant in common, Judge Clifton Johnson, and is not admissible in evidence.
II. The Trial Court erred in holding that the deed was signed and acknowledged by Judge Clifton Johnson.
III. The Trial Court erred in holding that the deed in question was not obtained by Mrs. Hazel J. Wood from her parents, Mrs. Charles Willie Johnson and Judge Clifton Johnson, by duress.
Collation of authorities: Nebhan v. Mansour, 162 Miss. 418, 139 So. 166; Yazoo Lumber Co. v. Clark, 95 Miss. 244, 48 So. 516; McKenzie v. Shows, 70 Miss. 388, 12 So. 336, 35 Am. St. 653; Blair v. Russell, 120 Miss. 108, 81 So. 785; Young v. Ashley, 123 Miss. 693, 86 So. 458.
APPELLANT IN REPLY.
I. No trust of any kind is involved in any way in this suit between these parties in this case to re-establish this deed from appellees which was destroyed by one of them. Aponaug Mfg. Co. v. Collins, 207 Miss. 460, 42 So.2d 431; Blacketor v. Cartee, 172 Miss. 889, 161 So. 696; Smith v. Board of Gen. Retirement System, 224 Miss. 13, 79 So.2d 447; Davis v. Davis, 210 Miss. 182, 49 So.2d 242; Bridgforth v. Payne, 62 Miss. 777; Lipe v. Souther, 224 Miss. 473, 80 So.2d 471; Secs. 269, 709-711, 746, Code 1942; 17-A Am. Jur., Sec. 29 p. 596; Griffith's Miss. Chancery Practice, Secs. 266, 300, 327, 335, 358, 360, 565, 586.
II. The appellant brought this suit against appellees to re-establish this destroyed deed when it became apparent that appellees intended to sell the property to an innocent third party, and the suit was timely and not barred by any statute of limitation applicable thereto. Garner v. Townes, 134 Miss. 791, 100 So. 20; Clark v. Foster, 110 Miss. 543, 70 So. 583; Gibson v. Jayne, 37 Miss. 164; Whitfield v. Miles, 101 Miss. 734, 58 So. 8; Cooper v. Cooper, 61 Miss. 676; Reynolds v. Wilkinson, 119 Miss. 590, 81 So. 278; Hook v. Bank of Leland, 134 Miss. 185, 98 So. 594; Smith v. Smith, 211 Miss. 481, 52 So.2d 1; Bott v. Wood, 56 Miss. 136; Secs. 709-711, 746, Code 1942.
III. No error, if any, may be predicated upon the ruling of the Court or failure of the Court to rule on the competency of the stipulation as to the testimony of Frank Scott. Nebhan v. Mansour, 162 Miss. 418, 139 So. 166; Mallory v. Walton, 119 Miss. 396, 81 So. 113; Sun Oil Co. v. Allen, 195 Miss. 555, 16 So.2d 26; W.L. Holcomb, Inc. v. City of Clarksdale, 217 Miss. 892, 65 So.2d 281; White v. Inman, 212 Miss. 237, 54 So.2d 375; Hickey v. Anderson, 210 Miss. 455, 49 So.2d 713; Morris v. Morris, 192 Miss. 518, 6 So.2d 311.
Mrs. Hazel J. Wood, complainant-appellant, filed her bill in chancery against her father and mother, Mr. and Mrs. Johnson, defendants-appellees, to restore and establish a deed and to quiet and confirm title to the land therein described. Defendants-appellees answered and filed a cross bill seeking to cancel the deed on grounds of undue influence and alleging that the deed had been voluntarily returned to the grantors, who destroyed it, and seeking to cancel the deed as a cloud on their title as against Mrs. Wood. The answer to the cross bill alleged that the surrender of the deed to the grantors was under duress.
The chancellor found for appellees and cancelled the deed and all claims of appellant to the property.
The appellees, an aged couple, owned and lived in a home on 37 acres of land in Madison County. Their daughter, the appellant, a childless widow, lived with them. On December 7, 1947, appellees executed and delivered to appellant a deed conveying the 37 acres of land reserving unto themselves a life estate. The consideration for the deed was love and affection. Appellant put the deed in a bank lock-box and never recorded it. About eight months later, another daughter of appellees learned about the deed and read a copy that had been retained in the files of the lawyer who prepared it. This other daughter and appellee, Mrs. Johnson, then went to appellant, and the sister said to appellant, "You are going to hand Mama back the deed because you have endangered their future, their livelihood by signing this. . . . Unless you do, we are going to court in Canton, Mississippi, to get this straightened out. . . ." Appellant then stated: "Why, Mama, I will give you the paper back if you want it. You gave it to me and I will give it back to you." Appellant then went to the bank and took the deed from her lock-box and handed it to her mother, the appellee, Mrs. Johnson, who destroyed it a short time later.
For about ten years thereafter, appellees lived in the house on said lands most of the time and appellant lived there part of the time. Appellant says that she at all times claimed the land subject to the life estate of appellees, but this claim was not communicated to the appellees. Sometime before this lawsuit was filed, appellees moved to Jackson because of the failing health of Mr. Johnson. Appellees needed to be nearer a doctor, and they made a down payment on a residence in the City of Jackson and placed the Madison County place, which is the subject of this suit, on the market for sale. A buyer was found who was willing to pay $21,500 for the Madison County home situated on the 37 acres of land. Appellant learned of this and notified the title insurance company, who was about to insure the title for the purchaser, that she held an unrecorded deed to the property. She thereby blocked the sale and filed this lawsuit. These are the facts which we deem material to the decision.
The chancellor found that the deed from appellees to appellant was signed, acknowledged, and delivered to appellant on December 7, 1946, and that said deed was not obtained by duress or fraud. He also found that appellant deliveded said unrecorded deed back to appellee, Mrs. Johnson, in August, 1947, upon the demand of appellant's sister that appellant reconvey the property to appellees, and that said delivery was not made under duress or compulsion, but was appellant's voluntary act. The chancellor then stated in his opinion that since appellant did not bring her action to restore and establish her deed within ten years from August, 1947, her right of action was barred under Section 746, Mississippi Code of 1942.
(Hn 1) We rest our decision on the specific findings of fact made by the chancellor that appellant voluntarily surrendered the deed to one of the appellees, Mrs. Johnson, in response to a demand made by appellant's sister that appellant reconvey the land to appellees. The sister told appellant that if she did not then reconvey the land the matter would be taken to court. The intent on the part of appellant is conclusive that she complied with the demand by returning the deed to Mrs. Johnson in satisfaction of the demand to reconvey, and from the facts specifically found by the chancellor, it follows that the understanding of the parties at the time was that the re-delivery of the deed by appellant was to effect a reconveyance of the land. The parties acted in accordance therewith. No suit was filed for the cancellation of the deed.
The rule has generally been adhered to in this jurisdiction that where a deed has once been signed and delivered, a subsequent surrender and destruction of it does not divest the grantee of title to the land. Burton v. Wells, 30 Miss. 688; McDaniel v. Johns, 45 Miss. 632; Partee, Administratrix v. Mathews, 53 Miss. 140; Lisloff v. Hart, 25 Miss. 245; McAllister v. Mitchner, 68 Miss. 672; 9 So. 829. But notwithstanding the validity of the rule just stated, there are circumstances where the surrender of a deed by the grantee to the grantor vests in the grantor an equitable title in the land which is enforceable against all persons having notice. The legal title remains in the grantee. This equitable modification of the rule first stated was recognized and applied by this Court in Blacketor v. Cartee, 172 Miss. 889, 161 So. 696. In that case it was held that a surrender of an unrecorded deed by the grantee to the grantor in satisfaction of a debt for the purchase money operated to vest in the grantor an equity in the land enforceable against persons having notice of such equity. While that case was here on demurrer, the Court recognized that if the facts alleged in the pleading be established on trial, the grantor would be entitled to a decree for a reconveyance "so as to transfer title back to the original grantor." As revealed by the second appearance of that case to this Court, Cartee v. Blacketor, et al., 179 Miss. 665, 176 So. 532, the claim of Cartee, derived from the chain of title beginning with the unrecorded deed which was surrendered by the grantee, as to which fact Cartee had notice, was cancelled. There is ample authority from other jurisdictions to the same effect. 26 C.J.S., Deeds, Sec. 175; 16 Am. Jur., Deeds, Secs. 356, 357.
The deed to appellant was without any consideration except love and affection; it was never recorded. Demand was made that appellant reconvey to grantors the property, otherwise a suit would immediately be filed against appellant; and in response to this demand appellant voluntarily surrendered the deed to one of the grantors, Mrs. Johnson. The situation of the parties was such that the inference is conclusive that at the time of the surrender of the deed back to Mrs. Johnson, appellant intended that Mrs. Johnson and appellant's sister consider the act of surrendering the deed as a relinquishment of appellant's claim under the deed. Just before surrender of the deed by appellant, she told her mother, ". . . I will give it back to you." We hold that the surrender of the deed reinvested in the grantors an equitable title in the lands described in the deed, and, since there are no rights of third parties intervening, appellees were entitled under their cross-bill to a decree for a reconveyance of the legal title or a decree confirming title in them as against appellant.
We need not consider whether Section 746, Mississippi Code of 1942, has any application to this case.
Affirmed.
Roberds, P.J., and Kyle, Arrington and Ethridge, JJ., concur.