111 So. 376 | Miss. | 1927
The appellee, it appears, was the father of the appellant and other children. He and his wife lived alone, and being afflicted with heart trouble and unable to do anything, he needed the care and protection of some of his children. Therefore an agreement was entered into by the appellant and the appellee that the appellant would move on the place and live with the appellee (his father) and his wife, provide for them, and give them the necessary care and attention; that the lands owned by the the appellee and occupied by him, described in the bill, would be deeded to the appellant, to take effect after the death of the grantors (the appellee and his wife), provided that, after the death of the grantors (appellee and his wife), appellant would pay to the daughter of appellee the sum of two thousand dollars out of the proceeds of the place or money raised by him for that purpose. An attorney was sent for, who prepared a deed embodying this agreement of the parties and expressly providing:
"That this deed is not to take effect until after the death of both of the grantors, but it is understood and so provided that the said grantee shall after the 1st day of January, 1925, have the right to occupy, use, cultivate, lease, or rent such lands, provided such grantee shall, to the satisfaction of the grantors, support and maintain them (the said grantors). And it is further provided that in case the grantors shall survive the grantees, then the heirs of the grantees shall have the right to carry out all the provisions of this deed, but it is understood that the right of the grantee or his heirs to use *848 and occupy the said lands will in no way interfere with or deprive the grantors of the right to occupy said lands and premises at their pleasure."
Subsequent to the execution of this deed, the appellant represented to the appellee that appellee's daughter and her husband were dissatisfied with the arrangement and insisted that the appellant pay them the two thousand dollars then; that he would like for appellee to change the deed so as to give appellee's daughter seventy acres of the land in lieu of the two thousand dollars, and thereby relieve appellant of the obligation to pay appellee's daughter two thousand dollars out of the proceeds of the place, which the appellee agreed to do. The appellant thereupon sent for a person, not a lawyer, to fix the papers so as to effect this purpose. This person drew a straight deed in fee simple, without any conditions attached thereto and without embodying the agreement therein, which deed was signed by the appellee and his wife and witnessed by two persons, one of whom afterwards made affidavit as a subscribing witness, and the deed was recorded on the 1st day of November, 1924, in the Records of Deeds in the county.
The appellee testified that he could neither read nor write, that he did not understand land numbers and was incapable of judging, from a reading of the deed in land numbers, the legal effect thereof; that he thought he was signing the deed as originally drawn with an alteration eliminating the two thousand dollar provision for appellee's daughter and substituting therefor seventy acres of the land originally conveyed to the appellant; that he did not know he was signing a new deed, and was not informed by any one of the persons present at the time of the signing of the papers of the changed effect of the new deed. He testified, further, that subsequently, on discovering this or learning that it was a new deed — that it was, in fact, a fee-simple deed — he took the matter up with his son (appellant), who agreed to have the deed corrected so as to embody the agreement and understanding *849 set out in the original deed, but that he had neglected to do so; that, finally, appellant became dissatisfied and proposed to move away; that appellant asked the grantors (the appellee and his wife) if they would go with him to his premises, which they did not desire to do; that the appellant proposed to place another person on the place as a tenant, but this person would not agree to go on the place unless the grantors, the appellees herein, would move out of the house on the place, which they were unwilling and declined to do; that the appellant then proposed to move away and let the appellee and his wife remain in their own home and handle the place, to which appellee agreed, provided appellant would restore him to the condition he was in when the first agreement was entered into, which the appellant agreed to do; that a question arose as to some improvements his son (the appellant) had made on the premises, and some other items, and the appellee surrendered to the appellant a note for eight hundred fifty dollars in satisfaction of his claim, and the appellant promised to reconvey the lands to him but failed to do so, and finally refused to do so.
Appellant's version was that they entered into the original contract, as stated; that his sister (the daughter of the grantor) insisted that he (the appellant) pay her the two thousand dollars at once; that he approached his father about making a change in the papers, and requested that a deed to certain land be made to his sister in satisfaction of the two thousand dollars, so as to eliminate her from the transaction; and his father acceded to his request; that a deed was prepared by a scrivener, which was read to his father and was satisfactory to him at that time, but that subsequently his father became dissatisfied and compelled him (appellant) to leave the place. Appellant denied that the note which was surrendered to him at that time was for eight hundred fifty dollars, but admitted that there had been certain payments made on the note. Appellant stated that he left as *850 much on the place as he found there; that he did not intend to surrender his right under the deed, but intended that his father should remain on the place and use it for his support during his lifetime and retain his title thereto at his father's death.
There is no real dispute about what was said at the time the son proposed to have the deed changed, and there is no contention in the evidence of the appellant that the agreement leading up to the change was to give him a fee-simple title to the land freed from the obligation to support, which was the consideration therefor.
This court has held in several cases that a mere breach of an agreement to support, as a consideration for a deed, is not sufficient to justify the setting aside of the deed for the support, and that there is no lien, unless expressly reserved, which would authorize the chancery court in charging the lien upon the property. Lowrey v. Lowrey,
Affirmed.