Martin v. Graham

75 So. 447 | Miss. | 1917

Sykes, J.,

delivered the opinion of the court.

The appellant, Andrew Martin, filed a bill in the chancery court of Warren county against appellee, Lucy Graham, in which bill he alleged that he was the sole heir at law of Chaney Vaughn, who died seized and possessed of certain property described in said bill, that the appellee, Lucy Graham, claims to be the owner of the property by virtue of- a certain instrument, the material parts of which are as follows:

“State of Mississippi, Warren County, City of Vicksburg. Know all men by these presents, that we, Henry H. Vaughn, . . . and Chaney Ann Vaughn, his wife, for the natural love and affection we both have and bear Lucy L. Graham and her heirs, do grant and give to her and her heirs all and singular, all the property, real, personal and mixed that we may die seised and possessed of, out of the proceedings of same, we desire and request and so order that. -. . . ”

The paper then mentioned certain amounts of money to be paid to certain relatives — “and we, the grantors herein, in this connection, hereby desire and request our said niece, Lucy L. Graham, see that our bodies be decently interred at our death. The land above mentioned is described as follows, to wit.”

Then follows a description of the real property owned by Henry and Chaney Vaughn at the time the instrument was executed and also owned by them at the time of their death.

“The property herein mentioned is in the name of P. H.Vaughn on the record, and is' totally unincumbered and all taxes have been paid to this date.

‘ ‘ Signed and delivered this 8th day of February, 1900.

his

“Henry A. X Vaughn. mark her

“Chaney A. X Vaughn.” mark

This paper was signed and acknowledged as if it were a deed. The appellee, Lucy Graham, in her answer claimed that she was the owner of this land by virtue of the execution of ths paper, which was in fact a deed; that it was the purpose and intention of the Vaughns to deed her this property, which they did. While there are some other questions raised in the case, the only material question to he decided by us is whether or not the above instrument is a deed or is testamentary in its nature. While it is in form a deed, at the same time there is no certain interest granted by it either to vest immediately or in the future. The important part of this paper is:

“All the property, real and personal and mixed that we may die seised and possessed of.”

In other words, it is perfectly clear that the signers of this instrument did not mean to convey any specific interest in any property at that - time owned by them, but simply were attempting to grant to Lucy Graham whatever property they might own at the time of their death. Certain charges were made on this gift; certain parties were to be paid certain sums of money out of the proceeds of this estate. Also the funeral expenses of these parties were to be paid. All of these things show clearly that the Vanghns in this instrument were making provision as to the disposition of their property after their death. In other words, it was but an attempt to make a will in form a deed. This case is quite similar to the cases of Simpson v. McGee, 73 So. 55, and Cox v. Reed, 74 So. 330. The governing principle in these cases is the same, and the decision in this case is controlled by them.

It is earnestly insisted by counsel for appellee that this paper is a valid deed under section 2762 of the Code of 1906, which provides that any interest in or claim to land may be conveyed, to vest immediately or in the future by writing, etc. A similar provision has been in the statutory law of the state for many years. This section has no bearing whatever on the case. Under it any interest in property may be deeded to vest immediately or in the future, but the deed must be effective as conveying some interest in the property. In other words, the maker in the deed must part with his jus disponendi of the property to the extent of the deed in this case there was nothing which passed by the paper. Nothing was to take effect until after the death of the signers of it. The paper was similar to a will, in that the makers of same during their lifetime had the absolute power to dispose of any or all of the property as 'they saw fit. As a matter of fact, the record shows that some of the property was sold by the signers of the instrument. We do not think the testimony in the case shows that any mistake was made in the drawing of the paper, neither does it show that appellee has acquired title by adverse possession. The court below rendered a decree in favor of the defendant, Lucy Graham. This decree is reversed, and the cause remanded, to be proceeded with in accordance with this opinion.

Reversed and remanded.