220 Miss. 234 | Miss. | 1954
This is a suit to cancel a 1936 mineral deed on the ground that the grantors’ signatures were forged. It was brought in the chancery court of Walthall County, by R. M. Duncan and his wife Daisy Duncan, and by their two grantees, appellees herein, against the grantee in the mineral deed, Homer P. Lee, Jr., and his successor in title, George H. Coates.
In 1933 R. M. Duncan purchased the 160 acre tract in question. He and his wife lived on a 40 acre tract adjoining on the east. The deed purports to be a conveyance from R. M. Duncan and wife, Daisy Duncan, to Homer P. Lee, Jr., of 15/16ths of the minerals under the 160
The bill of complaint charged that the deed was a nullity, and that the signatures of R. M. Duncan and Daisy Duncan had been forged to the instrument. Appellants, Lee and Coates, denied these averments in their answer, and pleaded ratification, estoppel and laches. Coates pleaded further that he was an innocent purchaser for value without notice of such claims. The final decree of February 14, 1953, adjudicated that neither R. M. nor Daisy Duncan executed the deed, that their signatures had been forged on it, that the deed should be cancelled, and that they never knowingly ratified it. Hence the instrument was cancelled as a cloud on appellee’s title.
We have concluded that the chancery court was correct in finding that Mrs. Daisy Duncan did not execute the instrument, but was in error in finding that R. M. Duncan did not execute it. We will not undertake to detail the testimony, but the great weight of the evidence shows that R. M. Duncan in fact executed this deed. He is 83 years of age and his memory is somewhat impaired. He testified that he never signed the deed, but he remembered that his brother Garland helped him to pay for the purchase of the 160 acres and took a mortgage on it; that Garland leased all of his land to a man from Texas, and that since Garland had a mortgage on R. M. Duncan’s land, “he leased mine too.” He said that Garland came over to his house and brought a check for $40 in payment for the “lease” of R. M. Duncan’s land; that Garland told him he was then getting only 10c an acre and that he had leased it for R. M. Duncan for 2?c an acre. He denied that Simmons, the notary public, took his acknowledgment and denied that
Appellants introduced, for purposes of impeaching R. M. Duncan’s testimony, the testimony which he had previously given in Cause No. 35,478 in this Court, which was a suit by R. M. Duncan’s brother Garland to cancel a similar deed allegedly obtained by Lee through fraud. In December 1943 this Court reversed a decree setting that deed aside, and held that Coates was an innocent purchaser. Lee v. Duncan, 195 Miss. 799, 16 So. 2d 31 (1943). In that case R. M. Duncan testified that he recalled that his brother Garland and two other men came to his house in March 1936 for the purpose of buying a “lease” on his property, paying 25c an acre; that he did not remember whether C. W. Smith was there, but that he signed an instrument and drew a draft on Homer P. Lee, Jr., the appellant, for $40; that his brother also signed the instrument. He thought it was a lease. He further testified in that case that he had been getting $16 a year rentals on a lease on his lands, which the records reflected was owned by the Sun Oil Company, but that after he had executed the instrument in March 1936 he did not continue to get $16 a year, but got $1 out of the $16, which, of course, is consistent with the execution by him of a 15/16ths mineral deed. In the present case R. M. Duncan testified that he had been drawing $16 a year rentals on his lease, but that after he executed in March 1936 what he thought was a lease, he “never received a penny.” Most of his testimony in the Garland Duncan
In addition, the original deed with the signatures in question is in the record, and admittedly true signatures of E. M. Duncan are also in the record. We have compared those signatures of E. M. Duncan and are of the opinion that they are identical and by the same person. And the testimony of a handwriting expert offered by appellants is clear and definite in support of that conclusion. All of these factors render the conclusion inescapable that E. M. Duncan executed the deed in question. Whether he erroneously thought that what he was signing was a lease does not affect whatever rights Coates, appellant, has in these minerals, since it is undisputed that he is an innocent purchaser from Lee for value without notice of any claims of appellees. Lee v. Boyd, 195 Miss. 794, 16 So. 2d 30 (1943); Lee v. Duncan, supra.
Mrs. Daisy Duncan testified that she did not sign the deed and that she did not authorize anyone to sign her name for her; and that she could not write her name, but that when she executed an instrument it would have to he by her mark. Appellants concede that Mrs. Duncan can not write her name. The deed in question has on it in someone’s handwriting “Daisy Duncan.” Her testimony and this concession are ample to rebut the presumption of execution by her arising from the acknowledgment. There was substantial support in the record for the chancellor’s finding that Mrs. Duncan did not execute the deed. For that reason she is not hound by it even as against an innocent purchaser for value. Laster v. Ard, 42 So. 2d 737 (Miss. 1949).
The trial court found that Daisy (and R. M.) Duncan did not “knowingly” ratify this deed. A fair interpretation of her testimony is that she knew nothing about it. She also said that no one had come to their place and undertook to interfere with their claim to the minerals. She is illiterate, and it is most doubtful that anyone read to her the entire deed of trust or assignment. In Denkmann Lbr. Co. v. Morgan, No. 50 Miss. Advance Sheet p. 28, January 29, 1954, grantees of a mineral deed excepting %ths of the minerals subse
Appellants say that appellees are barred from questioning the validity of the mineral deed because of laches; that appellees made no claim of forgery for 14 years, until 1950 when the suit was filed; that if a forgery occurred it apparently was done by Garland Duncan who died in 1942, and his testimony is lost because of the lapse of time; and that the living witnesses who testified have for gotten many of the circumstances of the transaction during that long period of time. The death of Garland Duncan occurred only six years after the date of the deed, and appellees would certainly not have been barred bj^ laches within that time. No open and notorious claim was made by appellants to the minerals during this time, and it does not appear that Daisy Duncan had any knowledge of appellants’ claim under the mineral deed. So whatever rights she has as against the deed are manifestly not affected by the plea of laches. The question of laches was essentially a question of fact for the trial court, and we do not think that it erred in refusing to apply that doctrine. Compare Laster v. Ard, supra.
In 1933 R. M. Duncan purchased the 160 acre tract in question, described as the E% of NE14, and N% of
This rule had been applied in several Mississippi cases. North American Trust Company v. Lanier, 78 Miss. 418, 28 So. 804 (1900); Robert G. Bruce Company v. Spears, 181 Miss. 786, 181 So. 333 (1938); Hughes v. Hahn, 209 Miss. 293, 46 So. 2d 587 (1950); Thompson v. Dyess, 67 So. 2d 721 (Miss. 1953). In 1947 R. M. and Daisy Duncan conveyed to the other appellees all of their interest in the 160 acres affected by the mineral
Affirmed in part, and in part reversed and remanded.