Leach v. Hirshman, 44 So. 33

Leach v. Hirshman

44 So. 33 | Miss. | 1907

Mayes, J.,

delivered the opinion of the court.

We are unable to agree with the chancellor in his view of the facts in this case, and think he should have canceled the deed executed by Leech to .Mrs. Hirslnnan on the 1st day of January, 1900, and ordered an accounting to be had, charging Leech with the amount of his note, with interest, and crediting him with all sums paid by him on this note to the original or any subsequent holder of same. The testimony in the case leaves it doubtful who is now the lawful owner of any balance that may be due on this note, if there is any balance due, and we leave this question to be settled by the chancellor. When the account is properly stated, if it be found that any sum is still due on this land as purchase money, it should be charged as a lien on the property in favor of such person as the chancellor may find to be entitled to same, and Leech should be ordered to pay whatever may be due to the parties properly entitled thereto, in default of which the property should be sold for the purpose of paying same. In stating the account, all overcharges, or improper charges, or usurious charges, if any, should be eliminated, and the rule in regard to partial payments applied, as required by § 2351 of the Code of 1892. If it shall appear that Leech has paid Mrs. Iiirshman more than was due, he shall have judgment for any overplus.

The record in this case show's that Leech is between eighty and one hundred years old.. At the time this deed was made to Mrs. Iiirshman he was infirm, of feeble intellect, and seems to have no recollection of ever having made the deed, and though the ’deed was made in 1900, and there were several members of his family living on the place with him, none of them seem to have known it until nearly four years after the deed was executed, when for the first time, so far as they knew, Mrs. Iiirshman began to assert title to it. After the *727deed was made Leech and his family continued to live on the place, just as they had done prior to that time, paid taxes on it, and not only were charged with the taxes on this land in the account rendered, but were charged with interest on the taxes. When this deed was made, Leech prior to that time had executed a deed in trust on the land to Mrs. Iiirshman in renewal of the former note, and when she undertook to close it out, instead of having it sold at public auction, she procured him to execute to her a deed to the land for the purported consideration of $350. At the time this deed was made, the weight of testimony shows, even if he was due this amount, that this eighty acres of land was modestly worth $6 per acre, or $480, or $150 more than the amount which was claimed to be due. If Leech was due the amount claimed at that time, he was entitled to have any overplus of value paid to him, in the light of the facts in this record. This $150 to him, speaking from this record, was an enormous sum. The record shows that though the original purchase price to be paid for this property was $350, and though the property was bought in 1885, nearly twenty years before this suit was instituted, he has had great difficulty in ever collecting together enough to discharge this sum. Therefore this excess of value amounted to a great deal to him.

The proof shows that he did not possess sufficient intellect to make any valid contract; that is to say, he was almost a centenarian, feeble of mind and body, and under these circumstances,. after these, facts were shown, it devolved upon appellee to show the most perfect fairness of this transaction, and the capacity of Leech to make the deed, and we think appellee has utterly failed to do so. We cannot give our sanction to a deed obtained under these circumstances. In a case of this character, where the mortgagee obtains a deed from the mortgagor by private agreement, and still. retains title to the property, nothing but the utmost fairness will prevent the deed from being canceled at the instance of the mortgagor. Leech *728is shown to have reached extreme old age, and his intellect and memory suffered such impairment as would make him easy prey. If the creditor collect his debt, he surely cannot complain that he is not permitted to reap an advantage over one of impaired intellect.

Reversed and remanded.