60 So. 570 | Miss. | 1912
delivered the opinion of the court.
The purpose of this suit is to correct a description of land in a deed. The deed was made by Mrs. A. E. Ford conveying certain land therein described to the appellees for a consideration of three hundred dollars, which the deed recites was paid to Mrs. Ford by the appellees. The deed is a formal warranty conveyance, with the usual covenants, and is attested by two subscribing witnesses, and its execution proved in proper statutory form by the affidavit of one of the witnesses. The deed was not filed" for record until after the death of Mrs. Fork, the grantor. This suit is brought by the appellees against the appellant, the only heir at law of Mrs. Ford. The chancellor granted the reformation of the deed and the quieting of the title to the land as prayed for by appellees in their bill.
It appears that the mistake in the description of the land occurred through the error of the scrivener in copying the description from a tax receipt. The erroneous description was not discovered until after Mrs. Ford’s death.
It is shown in this case that Mrs. Ford had owned only the one tract of land which the bill alleges she intended to convey to the appellees, and that it was her purpose to deal with this land in the deed which she signed. It is easy to understand that the writer of the deed, copying in a somewhat mechanical way the description of the land from a tax receipt, could easily make an error in description by writing down the wrong numbers in describing the portions of the sections intended to be conveyed. It is proper by a decree of a court of equity to correct such a mistake.
Appellant contends that there was not a sufficient delivery of the deed by Mrs. Ford. It is shown by the testimony of Mr. Bartlett, who wrote the deed, that Mrs. Ford intended it to be a warranty deed to the appellees. Another witness testifies that Mrs. Ford told him that she purposed to convey her land to Mrs. Richardson, one of the appellees, and, in fact, had done so. Another witness testified that he saw the deed more than once in the possession of Mrs. Richardson several months before Mrs. Ford’s death.
It was decided in the ease of Morris v. Henderson, 37 Miss 492, that the possession by the grantee of an unrecorded deed and its production on the trial by him is presumptive evidence of delivery. “When a deed is regularly executed, and is found in the hands of the grantee,
Appellant also contends that this is not a proper ease for relief by a court of equity, because it is an effort to reform a deed made without consideration, and which is only a voluntary conveyance to the appellees. This contention is not supported by the facts as shown in the record. The deed itself plainly states that it is for the consideration of three hundred dollars, which the grantor says has been paid to her, and for which she duly acknowledges receipt. ' There is nothing in the record to disprove this clear statement in the deed. The principle which is sought to be invoked, that a deed in favor of a volunteer will hot be reformed, will not apply in the present case. There is sufficient consideration shown to empower the court to make the proper reformation of the instrument in order to carry out the intention of the parties.. The deed was executed and delivered by Mrs. Ford, and the appellees received and accepted the same. This is an ordinary case of conveyance of land between parties for a consideration. We find in the record a written opinion by the chancellor giving very clearly his findings. From this it appears that he carefully considered the case, and our review of it leads us to the conclusion that he was correct in his decision.
Counsel for appellant very strongly contends that the court erred in remanding the cause to rules for the further taking of testimony, and continuing the case until the next term of the court. The following is taken from the order
The chancellor is in no manner going beyond the duties imposed upon him when he so conducts a case that all testimony which will throw light upon the matters in controversy is introduced, and in his discretion he may continue the case, or remand the case for further proof. In the case of Beard v. Green, 51 Miss. 856, Chalmers, J., in delivering the opinion, stated: “The power of the chancery court to remand a cause for further proof at any time before final decree, and in some eases after it, either with
There are some who seem to consider a trial judge a mere figurehead. They are wrong. He is the presiding officer of the court. He should control all of the proceedings. He should require that the court be conducted in an orderly and dignified manner, with due formality. It is his highest duty to see that litigants have fair trials of their causes. To this end, it is not improper for him to aid in bringing out competent and relevant testimony. He should jealously guard the rights of all parties in a cause. It should be his continuous purpose to conduct the proceedings in a case so that justice to all may be done and a right decision reached. A judge, with full consciousnéss of the dignity and importance of his office and the obligations and duties resting upon him, and having an abiding desire to do what is right, will hardly abuse the powers and discretions lodged in him. And at all times, by reason of the honorable office he occupies, he should receive the courteous respect of every one.
Affirmed