Opinion
No. 39234.
May 10, 1954.
1. Evidence — matter of common knowledge.
It is a matter of common knowledge that people often obtain quitclaim deeds even where the grantors therein have no title whatever, the purpose being to allay even suspicion concerning the title.
2. Appeal — cancellation of instruments — evidence — warranted dismissal of bill — dead man's statute violated.
In suit for cancellation of deed, evidence was sufficient to warrant dismissal of bill, notwithstanding erroneous admission of testimony of grantee in violation of dead man's statute. Sec. 1690, Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Walthall County; F.D. HEWITT, Chancellor.
Karl W. Kepper, Francis T. Zachary, Hattiesburg, for appellants.
I. No person shall testify as a witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person. Jackson v. Johnson, 126 Miss. 26, 88 So. 410; Rushing v. Rushing, 52 Miss. 329; Sec. 1690, Code 1942.
II. The Court erred in dismissing the bill to set aside a purported deed for the reason that the deceased and the defendant were cotenants, and a fiduciary relationship existed making the purported deed prima facie fraudulent. Bourn v. Bourn, 163 Miss. 71, 140 So. 519; Clausell v. Riley, 188 Miss. 647, 196 So. 245; Ham v. Ham, 146 Miss. 161, 110 So. 583; Shelby v. Rhodes, 105 Miss. 255, 62 So. 232; 14 Am. Jur., Sec. 4 p. 78.
III. The Court committed error in allowing testimony concerning an instrument when the original instrument was not offered in evidence.
Breed O. Mounger, J.M. Alford, Tylertown, for appellee.
I. The Court did not commit reversible error in permitting Dr. B. Lampton Crawford to testify in this case in that, disregarding the testimony of this witness entirely, the complainants had wholly failed to meet the burden of proof upon them, and further there was ample testimony to support the finding of the Chancellor. Birchett v. Hundermark, 145 Miss. 683, 110 So. 237; Blomquest v. Gardner, 95 Miss. 307, 48 So. 724; Cole v. Garner, 67 Miss. 670, 7 So. 500; Cowart v. Cowart, 211 Miss. 459, 51 So.2d 775; Cresswell v. Cresswell, 164 Miss. 871, 140 So. 521, 144 So. 41; Fant v. Fant, 173 Miss. 472, 162 So. 159; Harper v. Lacey, 62 Miss. 5; Kirk v. United States Fidelity Guaranty Co., 214 Miss. 441, 58 So.2d 924; Lawrence v. Lawrence (Miss.), 63 So.2d 825; Muse v. Alexander (Miss.), 56 So.2d 804; Planters Merchants Ins. Co. v. Tunstall, 72 Ala. 142; Ross v. Biggs, 206 Miss. 542, 40 So.2d 293; Wall v. Wall, 177 Miss. 743, 171 So. 675.
II. The Court did not commit reversible error in admitting the testimony of the witness, Paul Mangum, Vice President and Cashier of the Tylertown Bank.
This was a suit in the Chancery Court of Walthall County by Mrs. J.E. Brock, widow and administratrix of the Estate of J.E. Brock, Sr., Deceased, and the sons and daughter of the decedent against Dr. B. Lampton Crawford. The purpose of the suit was to effect the cancellation of a deed, dated August 6, 1941, from J.E. Brock to Dr. Crawford which purported to convey Mr. Brock's interest in 795 acres of land, and to require an accounting for timber cut and removed therefrom. It was charged that Mr. Brock and Dr. Crawford were cotenants; that a fiduciary relationship existed between them; and that the deed in question was forged. The answer was a full and complete denial of all of the material allegations of the bill of complaint. At the conclusion of the evidence, the court entered a decree which adjudged that the complainants have no interest in the land. From the dismissal of their bill, the complainants appealed.
The evidence for the complainants showed that, while Mr. Brock and Dr. Crawford were good friends, they had never had any business association until their purchase of 995 acres of land on January 6, 1936. Subsequently they sold about 200 acres of the tract. Mr. Brock died on July 21, 1946. On October 24, 1946, Dr. Crawford recorded a deed dated August 6, 1941, to himself from Mr. Brock by which the land in question was conveyed. The complainants introduced a letter dated December 5, 1940, from Dr. Crawford in which he sought to sell to Mr. Brock his interest in the land which they owned jointly. They also introduced another letter, dated either October 1, 1941, or October 1, 1943, in which Dr. Crawford said "if you will make the deed to the land, I am in position to pay you for it now." A number of cancelled checks, drawn by Mr. Brock in his lifetime, were introduced for comparison with the signature on the original deed. Mrs. J.E. Brock and L.P. Brock testified that, after the death of their husband and father, they asserted their interest in the land to Dr. Crawford, and that he offered to give them $300 or $400 for a quitclaim deed. They had never heard of any sale of the land by the decedent in his lifetime.
Viewing, in a reasonable manner, the effect of the evidence for the complainants, it must be said that it was weak for the following reasons: (1) It is not unreasonable that the decedent sold the land without the knowledge of members of his family. (2) The witnesses did not testify that Dr. Crawford admitted that the decedent owned a half interest in the land. They simply said that he wanted to get a quitclaim deed from them. L.P. Brock admitted that Dr. Crawford was claiming the land at the time. (Hn 1) Now it is common knowledge that people often obtain quitclaim deeds even when the grantors therein have no title whatever, the purpose being to allay even suspicion concerning the title. (3) The signatures on the cancelled checks and on the original deed possess great similarity. It does not take a handwriting expert to point out the likeness in most of the letters. The only substantial difference is that the signature on the checks has a flourish — a line from the "k" to the left, across the signature, and thence to the right again across the signature, whereas the flourish is absent in the signature on the deed. It is not uncommon for some people to make use of distinguishing marks. Such persons, in using an extraordinary mark in their signatures to checks, are no doubt motivated by the desire to prevent the forgery of their signatures and the withdrawal of their funds. (4) The letter of October 1, 1941, or October 1, 1943, in no way identified the land there mentioned as that in which the parties were jointly interested. Besides, Mrs. Brock, on cross-examination, in effect admitted that Dr. Crawford did negotiate with her husband about the purchase of the 80 acres of land, which was later sold to Emmett Hewitt. (5) In the letter of December 5, 1940, Dr. Crawford informed Mr. Brock that, because of financial obligations, it was necessary for him to sell something, and he was wondering "if you might not be in shape to take our mutual investment over and pay me what I have in it. I feel sure you could handle it to better advantage that way." (Emphasis supplied.) In the original purchase of the 995 acres, the deed recited a consideration of $497.50. Hence the conduct of Dr. Crawford, in that particular, negatived the contention that he desired or attempted to take an undue advantage of Mr. Brock.
J.M. Alford, the attorney who prepared the deed in question, was called as a witness for the defendant. He testified that he drafted the deed at the instance of Mr. Brock, who furnished the description and called it off as the lawyer wrote on the typewriter. Besides, he saw Mr. Brock deliver the deed to Dr. Crawford and receive a check for $500, which, according to his testimony, was the true consideration. This witness was not even cross-examined. Miss Celia Yarbrough, the notary public whose name appeared on the deed, testified that she took Mr. Brock's acknowledgment and signed her name and put her notarial seal on the deed. She was neither related to nor connected with the defendant in any way. Paul Mangum, cashier of the Tylertown Bank, testified that, on August 7, 1941, a check dated August 6, 1941, drawn on his bank by Dr. Crawford in favor of J.E. Brock, and endorsed by Mr. Brock, was charged to Dr. Crawford's account, and was credited to the account of J.E. Brock.
Hence, if human testimony is to be believed, undoubtedly J.E. Brock, for an actual consideration of $500, on August 6, 1941, executed and delivered the deed in question to Dr. Crawford, and, on the next day, collected the amount of the check which was given in payment of the consideration.
Notwithstanding the testimony of the above named three witnesses constituted a complete defense to this suit, the defendant himself, over the strenuous objection of the complainants, testified in explanation of his delay in recording the deed to the effect that he mislaid it, and it was only after some question arose as to Roy Hill's title, as a result of talk by the complainants, that he found the deed and put it on record; that he did not offer the Brocks $300 or $400 for a deed or quitclaim; that the letter of October 1, 1941, or October 1, 1943, had reference to adjacent land; that he received the deed on August 6, 1941; that the actual consideration was $500 instead of $10 as recited in the deed; that he gave his check for $500 on the Tylertown Bank and it was paid, but he lost it; and that he was in no fiduciary relationship with Mr. Brock.
The recordation of the deed and the conversation with the Brocks occurred after the death of the decedent. Consequently it was not error to admit his testimony in explanation of his delay, and in denial of the evidence of the Brocks that he offered $300 or $400 for a quitclaim deed. The worth of the letter of October 1, 1941, or October 1, 1943, was so inconsequential as evidence, that the defendant's testimony thereon may be said to have been harmless.
The rest of Dr. Crawford's testimony, however, was in direct violation of Section 1690, Code of 1942. The statute is clear. So many cases have construed it that error ought no longer result in its application. The error here was palpable, and ordinarily such error would require a reversal of the cause.
(Hn 2) However, the Court is faced with this situation: If the appellants' objection to the testimony of Dr. Crawford had been sustained and the court had decided the case in favor of the appellants, such a decision would have been so manifestly wrong that this Court would have had no other alternative than to reverse and render a judgment here for the opposite party. So, notwithstanding the manifest error in the admission of the testimony, as above mentioned, the record in this case, excluding such inadmissible evidence, permits no other result than that which was reached.
The cause is therefore affirmed.
Affirmed.
Roberds, P.J., and Arrington, Ethridge and Gillespie, JJ., concur.