105 So. 850 | Miss. | 1925
The case presented by the amended bill and proof is simply this: During the lifetime of Mr. J.L. Moore, he sold to the appellee, Dr. J.S. Moore, about seven hundred acres of land, for which he was paid the sum of two thousand five hundred dollars, and also, as a part of the consideration for the land, the appellee, Dr. J.S. Moore, delivered to the decedent, J.L. Moore, the two Yazoo-Mississippi Levee bonds here in question, to be held during the life of J.L. Moore, who was to receive the coupon interest upon the bonds while he was living, and the bonds were to remain the property of Dr. J.S. Moore and to be returned to him at the death of the deceased, J.L. Moore.
This agreement and understanding between the parties with reference to the consideration for the deed to the land and in regard to the bonds remaining the property of Dr. J.S. Moore subject to the right of the use of the coupons by J.L. Moore during his life was proved by competent evidence and found to be a fact by the chancellor.
It also appears that at the time the deed to the land was executed and the bonds were delivered to the deceased, J.L. Moore, he (J.L. Moore), in accord with and pursuant to the agreement between the parties as to the consideration for the purchase of the land as related above, executed and delivered to the appellee, Dr. J.S. Moore, a written order in the following form:
"McCool, Miss., Dec. 13, 1916.
"To My Administrator: Deliver to Dr. J.S. Moore, Yazoo Miss. Delta Levee Bonds, Nos. 207 and 211.
his J.L. X MOORE. mark
"Sworn to and subscribed before me this 13th day of December, 1916.
"SID RAINWATER, NOTARY."
When demand was made upon the administrator for the delivery of the two bonds mentioned in the order *804 signed by the deceased, J.L. Moore, the administrator, Dr. C.A. Moore, refused to deliver the possession of the bonds to the appellee, Dr. J.S. Moore, whereupon this suit was filed, in the nature of a replevin in chancery, to recover the possession of the bonds.
The appellant urges reversal upon several different grounds, all of which we have carefully considered, but we do not see sufficient merit in any of the contentions to warrant discussion, except one or two, which we will take up as follows: The appellant contends that the suit is in the nature of a bill to reform the deed or contradict its terms, or that it is a suit to vary or contradict the terms of the writen order by oral testimony showing a different agreement made contemporaneously with the deed and the written order for the bonds.
We do not think the position is well taken, for the reason that it is not a suit to reform the deed, nor is it an effort to contradict the terms of the written order, or the terms of any other writing in the case. But the oral testimony, which was competent and overwhelming, did not contradict the written order for the bonds, but it went to show that the bonds were at all times the property of the appellee, Dr. J.S. Moore, and that under the agreement with the deceased the bonds were to be returned to appellee at the death of J.L. Moore, and this testimony did not contradict the deed or written order, but was in harmony with them; and the written order corroborated the oral testimony, or we may say the oral testimony showed the true consideration of the deed and explained and corroborated the written order. So it will be seen that the position of appellant in this regard is untenable and cannot be maintained.
The purchase of the land by deed from the deceased to the appellee is only incidental to the question involved in this lawsuit; that is, whether the appellee is entitled to the possession of the two bonds against the administrator of the deceased. We may say also that the written *805 order for the bonds given by the deceased to the appellee is only a corroborative feature in the case which bears upon the question of whether the appellee owned the bonds and was entitled to the possession of them at the death of J.L. Moore. There could have been a recovery in this case, as was allowed by the chancellor, even if the written order had never been introduced in the case, because the oral testimony abundantly supported the allegations of the bill setting up the right of possession of the two bonds by virtue of ownership in the appellee, J.S. Moore.
The appellant further contends the lower court erred in ordering the administrator to deliver the bonds to the appellee, because the appellee had agreed that he would pay a part of one hundred and eighty dollars per annum to a Mrs. Parker, formerly the housekeeper of the deceased. The testimony for the appellee was that this promise to pay a portion of the one hundred and eighty dollars a year to Mrs Parker was a conditional agreement and was made with the understanding that, if Mrs. Parker held the two bonds, then appellee's name was to be withdrawn from the agreement, and it appears, and was so held by the chancellor, that, under the conditions upon which appellee agreed to pay his portion of the one hundred and eighty dollars per annum to Mrs. Parker, he was released, and there was no estoppel under the facts, from this agreement. At all events we are unable to see how the appellee can be estopped from claiming the possession of the two bonds, even though he may have become indebted to Mrs. Parker or to appellant by agreeing to pay Mrs. Parker something each year. This fact alone would not bar the appellee from obtaining possession of the two bonds in question.
Another point presented is that the claim was not probated against the estate of the deceased. This is not that character of claim that is required to be probated against the estate of the deceased. The suit here was for *806 possession of bonds, property, owned by the appellee, and the claim was not for an indebtedness, but was for the possession of the property by virtue of ownership.
In view of these conclusions, the decree of the lower court is affirmed.
Affirmed.
