Summary
In Carter v. Dabbs, 196 Miss. 692, 18 So.2d 747, we said "It is elementary that a deed, to be operative, must pass a present interest, while an instrument testamentary in character operates only upon and by reason of the death of the maker, who, by its execution, parts with no right and divests himself of no estate, and who, while possessing the requisite capacity, can revoke or change the same at his pleasure."
Summary of this case from Rodgers v. RodgersOpinion
No. 35646.
June 12, 1944.
1. WILLS.
A "deed," to be operative, must pass a present interest, while an instrument "testamentary" in character operates only upon and by reason of death of maker, who by its execution parts with no right and divests himself of no estate, and who, while possessing the requisite capacity, can revoke or change such instrument at pleasure.
2. WILLS.
In determining whether an instrument is a deed or will, court must ascertain and give effect to intention of the parties as gathered from the entire instrument, in the light of the circumstances surrounding its execution.
3. WILLS.
Where grantors intending to execute deeds conveyed land in fee simple by instruments in the form of warranty deeds reserving to grantors use of a house, pasture and ten acres, and providing following grantee's promise to pay specified annual amounts to grantors until their deaths, that at such time the property should be grantee's, and that if grantee should fail to make such payments, deed should be void, the instruments were "deeds," and not "testamentary" in character.
4. DEEDS.
Conveyance of realty could not be set aside on ground of fraud based on a statement the truth of which as an assertion of fact or as an act of performance was not denied.
5. FRAUDS, STATUTE OF.
An oral executory promise to reconvey land if grantors are not satisfied is void under the statute of frauds.
6. DEEDS.
Where grantors approximately 72 and 69 years of age respectively, conveyed 500 acres of land which was worth between $5,000 and $8,400, of which 110 acres were in cultivation in consideration of annual payments of $500 until their deaths, payment of which was secured, and were to receive in addition a home, another house, use of pasture and ten acres for cultivation, any inadequacy of consideration was not so gross as to justify setting aside deeds for fraud.
APPEAL from the chancery court of Monroe county, HON. ALVIS MITCHELL, Chancellor.
James A. Finley, of Tupelo, and Paine Paine, of Aberdeen, for appellants.
As to the testamentary character of the deeds, reference to them would appear to be sufficient. No title passed in praesenti. The purchaser was to pay $500 annually to the grantors, "until their death." "At that time the above described property is to be said Reuben Dabbs." This court has held many times that a deed of conveyance to take effect at the death of the grantor is void.
Wall v. Wall, 30 Miss. 91; Cunningham v. Davis, 62 Miss. 366; Simpson v. McGee, 112 Miss. 344, 73 So. 55; Cox v. Reed, 113 Miss. 488, 74 So. 330; Kelly v. Covington, 119 Miss. 658, 81 So. 485; Knight v. Knight, 133 Miss. 74, 97 So. 481; Tapley v. McManus, 175 Miss. 849, 168 So. 51; Mims v. Williams, 192 Miss. 866, 7 So.2d 822; Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892; Ates v. Ates, 189 Miss. 226, 196 So. 243.
It is quite apparent that the grantors in these deeds intended that title should remain in them until after they died, and that it should then pass to the defendant, if he had performed the conditions. This intent is testamentary in character and could not be consummated by deeds.
Culy v. Upham, 106 Am. St. Rep. 388.
In cases where the consideration for a conveyance or contract is so grossly inadequate as to shock the conscience, it is held by some courts that cancellation will be decreed, not because the price or consideration is inadequate, but because the inadequacy is so great as to amount to evidence of fraud.
Willis v. Rummage (Ala.), 107 So. 864; Stevens v. Ozbourne, 89 Am. St. Rep. 957; 9 Am. Jur. 272, Sec. 26, citing Bruner v. Cobb, 37 Okla. 228, 131 P. 165, L.R.A. 1916D, 377; 16 Am. Jur. 456, Sec. 33; 6 Thompson on Real Property, Sec. 3211.
Under the state of facts in this case, the burden of proof was upon the purchaser to show that the transaction was fair, just and righteous. This the purchaser in the case at bar utterly failed to do.
Yarbrough v. Harris (Ala.), 52 So. 916. Marshall T. Adams and George T. Chas. S. Mitchell, all of Tupelo, for appellee.
Appellee contends that the instruments are deeds and are valid in every respect. The determination of this issue will, or at least should, settle this case. Laying aside for the moment a discussion of the legal principles applicable to the issue, let us first consider the instruments from a practical and matter of fact standpoint. What led up to the execution of these instruments? Appellee testified in the court below, and the chancellor found, that the entire transaction was initiated by appellants in seeking to rent the property to appellee. Appellants were old and had reached that impasse in life where they could not properly from a physical standpoint care for this property as it should be cared for. The first discussion was followed by others and a final agreement was reached. The record is clear as to what the facts were preceding the execution of the instruments in question. Appellee testified, and the chancellor found, that appellee, being unwilling to rent the property, offered a counter proposal to appellants, which, after subsequent conferences and amendments, was accepted by appellants, which said final agreement is incorporated in the instruments in question. These instruments were drawn by one not versed in the law, but the intention of the parties can be clearly ascertained therefrom, and, after all, this is all that is necessary. The intention of the parties as testified to by appellee and corroborated to a great extent by the testimony of appellants, and as found by the chancellor upon the evidence, was, in substance, that the appellee would purchase from appellants the property involved and appellants would deed to appellee the property involved upon the consideration that (a) appellee would pay to appellants the sum of $10 cash, which was done, and which sum was duly received by appellants; (b) appellee would pay to appellants the sum of $500 annually as long as they lived, the property to revert to appellants if appellee should fail to meet any of the installments as they became due; (c) appellee would permit appellants through proper reservation in the deeds to retain certain acreage and dwellings which appellants would have the right to use as a home as long as they lived, with the further right to cultivate same and receive the rents and profits from same; and (d) appellee to pay the taxes.
The evidence showed, and the chancellor found, that appellee had acted in good faith all the way through this transaction and had fully complied with all requirements exacted of him under the instruments in question, which finding, of course, is binding upon this court if supported by substantial evidence.
Richardson v. Bethune (Miss.), 6 So.2d 925; Hays v. Lyon, 192 Miss. 858, 7 So.2d 523; City of Louisville v. Chambers, 190 Miss. 833, 1 So.2d 771.
The chancellor found, and properly so, that there was no fraud or overreaching in the execution of these deeds, that the consideration was adequate and that all the parties were fully cognizant of the effect of their acts in the matter. The finding of the chancellor should not be disturbed.
Passing to the other issue as to whether the instruments were deeds or wills, we respectfully submit that the instruments are deeds, and this is strengthened when the facts attending the execution of same, as evidenced by the record, are taken into consideration and given their proper evaluation.
Argued orally by Thos. F. Paine, for appellants.
On December 8, 1942, Alice Edwards executed to Reuben Dabbs the instrument of writing here set out by the reporter in full, except the acknowledgment, in the margin. On the same day Alice Edwards and her brother, G.D. Carter, executed to Dabbs another instrument of writing which, in all essential parts, is the same as the instrument so set out, except it purports to convey 320 acres of land, and Dabbs, grantee, agreed to pay grantors $300 January 1, 1944 and "each year thereafter until their death," and "The said G.D. Carter is to have ten acres to cultivate each year the use of one house on above described property until his death."
On August 27, 1943, Mrs. Edwards and Mr. Carter filed bills in the chancery court seeking to (1) have these instruments adjudicated as testamentary in character and effect and, therefore, void, not being in forms required of wills, or, if deeds, (2) to set them aside because of fraud allegedly practiced upon them by Dabbs. The causes were consolidated and tried together by agreement, and the chancellor dismissed the bills.
Are these documents wills or deeds? Both, following the promise of Dabbs to pay the specified annual amounts to the makers until their deaths, contain this phrase, — ". . . at that time the above described property is to be said Reuben Dabbs." Appellants say this phrase stamps the instrument as testamentary in character. The applicable law is settled. It is elementary that a deed, to be operative, must pass a present interest, while an instrument testamentary in character operates only upon and by reason of the death of the maker, who, by its execution, parts with no right and divests himself of no estate, and who, while possessing the requisite capacity, can revoke or change the same at his pleasure. It is furthermore a cardinal rule of construction that it is the duty of the court to ascertain and give effect to the intention of the parties as gathered from the entire instrument, in the light of the circumstances surrounding its execution. It is for us to apply these settled rules and principles to the case at hand. Specifically, as applied to the instruments under consideration, we must ascertain what the parties themselves intended, the circumstances surrounding them at the time of execution, and the meaning of the terms of the documents. The parties themselves testified. They all agreed that they negotiated prior to the execution of the instruments. All of these negotiations were on the basis of a sale and purchase, — a conveyance of lands for a consideration. They agreed upon the terms. They went before a justice of the peace and informed him of the terms and directed him to prepare the documents. He did that according to the instructions. The instruments were read. Mrs. Edwards informed Mr. Carter, somewhat in the nature of a warning, that they were conveying away the property. Mr. Dabbs, testified, without contradiction, that he wanted the deferred payments secured to the grantors, and, therefore, the provision, "If Reuben Dabbs fails to make full payment each year this deed is null and void," was inserted. The grantors in their testimony always referred to the instruments as deeds. There is no question whatever that Mrs. Edwards and Mr. Carter intended to execute deeds and understood they were doing so. The word "will" was never spoken.
As to the instruments themselves, they are by their own words labeled warranty deeds; they contain the operative words of conveyance usual to warranty deeds; they convey the land in fee simple; the land is described specifically and the grantors covenant they will warrant and defend the title forever against the lawful claims and demands of all persons. They contemplate delivery of the land to the grantee, who is obligated to pay the taxes. Grantors reserve a home, the use of pasture, ten acres, and a house on the lands. The instruments set out the consideration and obligate Dabbs to pay it. It will be noted the phrase ". . . at that time the above described property is to be said Reuben Dabbs" immediately follows the obligation to pay the annual consideration until the deaths of the grantors. This is followed by the provision that if Dabbs fails to pay the consideration, "this deed" is null and void. The parties meant by the quoted provision that Dabbs was not obligated to make further payments after the deaths of the grantors — that the land would be free from further claims for the consideration of purchase; that the land would then be his property absolutely. It did not mean the deeds were not to take effect until after the deaths of the grantors. It is our conclusion that these instruments are deeds.
But it is said that they were obtained by fraud and the fraud should vitiate them. That fraud rests upon appellants' statements that (1) Dabbs said if they conveyed to him the lands he could produce more feed and food for the war effort than he was producing, (2) that if they were not satisfied he would re-deed the lands to them, and (3) such gross inadequacy of consideration as to shock the conscience of the court. As to the first ground, appellants admitted it was a laudable ambition and it is not claimed the statement is untrue as an assertion of fact or as an act of performance. As to the second ground, Dabbs denied be made such a promise, but admitting that he did, it constituted only an oral executory promise to reconvey land void under the statute of frauds. And as to the third ground, the estimates of the value of the land run from five thousand to eighty-four hundred dollars. However, all the witnesses agree the land is not well located as to the public highway; that the improvements have become dilapidated; that the timber of appreciable value has been removed, and that there are only around one hundred and ten acres of land in cultivation on the tract of five hundred acres. Dabbs testified that it would cost two thousand dollars to repair the houses, etc., and to put the farm in proper condition. This was not denied. The taxes are about $100 annually, which Dabbs must pay. It is pertinent to add that Dabbs had been renting for $100 per year the lands not otherwise used by the appellants on these farms, and they desired that he make a long-time rental arrangement at that price, which Dabbs would not do because of the run-down condition of the farm. This is what led to the negotiations for sale and purchase.
We, of course, cannot know how long Mrs. Edwards or Mr. Carter will live. He was seventy-two years of age at the time of the trial and she between sixty-nine and seventy. They are to receive five hundred dollars per year, have a home, another house, use of pasture, and ten acres of land for cultivation as long as they live. The payment to them of this five hundred dollars annually is secured. At their ages and station in life this will likely supply all of their wants and needs while they live, and if Providence shall bless them with long lives, they will receive the full estimated maximum value of the lands conveyed. It is easily conceivable that the sale of the land on these terms is better for them than its keep. But be that as it may, the inadequacy of the price, if there be inadequacy, is not so gross as to justify us in setting aside the deeds for fraud, however desirable that might be from the standpoint of harmony between the parties.
Affirmed.
Warranty Deed
Alice Edwards to Reuben DabbsThis Indenture made on the 8 day of December, A.D., Nineteen Hundred and forty two by and between Alice Edwards of the County of Monroe, State of Mississippi, party of the first part and Reuben Dabbs of the County of Monroe, State of Mississippi, party of the second part.
Witnesseth, That the said party of the first part, in consideration of the sum of Ten No/100 Dollars to be paid by the said party of the second part, the receipt of which is hereby acknowledged, does by these presents, grant, bargain, and sell, convey and confirm, unto the said party of the second part his heirs and assigns, the following described lots, tracts, or parcels of land, lying, being, and situated in the County of Monroe and State of Mississippi, known and described as follows:
North east 1/4 less fifteen acres, NE 1/4 of SE 1/4 Section 13, Township 13, Range 18.
The said Reuben Dabbs is to pay Two hundred No/100 ($200.00) the first day of each year beginning the first day of the year 1944 each year thereafter until her death, at that time the above described property is to be said Reuben Dabbs. If Reuben Dabbs fails to make full payment each year this deed is null void. The said Alice Edwards G.D. Carter is to have home use of pasture until their death on above described property.
To Have and to Hold the premises aforesaid with all and singular the right, title, privileges, appurtenances and immunities thereto belonging, or in anywise, appertaining, both at law and equity, unto the said party of the second part, and unto his heirs and assigns forever in fee simple. And the said party of the first part, for ____ heirs, executors and administrators, does hereby covenant and agree with the said party of the second part his heirs and assigns, that the party of the first part will warrant and defend the title of the said premises unto the said party of the second part, and unto his heirs and assigns forever, against the lawful claims and demands of all persons whomsoever, except on account of taxes due after the 1st day of January, 1943.
In Witness Whereof, The said party of the first part has hereunto set her hand and seal ____ the day and year first above written.
Alice Edwards (Seal)