83 So. 2d 802 | Miss. | 1955
Appellant Mamie Newsom brought this suit in the Chancery Court of Marion County against her brother I. N. Newsom and other heirs claiming under her mother, Mrs. M. J. Newsom. Complainant asserted that she was the owner of 192 acres in Marion County, and that she acquired title to this land by a deed from her mother of April 29, 1922, which deed was recorded in the deed records on January 9, 1936. The bill charged that I. N. Newsom had been cutting and removing timber from the land, and had refused to permit a purchaser of timber from complainant to enter upon the land. It sought to cancel any and all claims of defendants and to remove clouds asserted by them, for an accounting, and a writ of possession. Defendants denied that complainant acquired any interest by the 1922 deed, but admitted that she owned a one-fifth interest as an heir of her mother. They pleaded that they owned the balance of the title as heirs and descendants of heirs of Mrs. M. J. Newsom. Laches and estoppel of complainant to assert the contrary were also interposed.
After a lengthy trial, at which the testimony was directed largely to the latter two issues and that of delivery vel non of the deed, the chancery court held that the proof showed clearly that the 1922 deed was never
It would serve no purpose to set forth in detail the testimony on these issues. We think it was ample to support the finding of the chancery court, and certainly we cannot say that the chancellor was manifestly wrong. On the issue of whether the 1922 deed from Mrs. M. J. Newsom to appellant was delivered, the ultimate burden of proof on this issue was on appellant, who brought this suit and asserted title under the deed. Appellant relies strongly upon the presumptions that the deed was delivered, arising from the fact that it was acknowledged before a notary public, from its signing by the grantor in the presence of both the grantor and grantee, and from the fact that appellant was in possession of it at the time of the trial. These presumptions created a prima facie case for appellant on the issue of delivery. But of course they are procedural presumptions and are rebuttable. The chancellor had the right and duty to examine all of the evidence on this issue, both direct and circumstantial. The evidence was ample to warrant the court in concluding that Mrs. M. J. Newsom did not deliver the deed to Mamie. She died in 1928, and from 1922 until her death she dealt with the land and its proceeds just as if she had not executed a deed to Mamie. Nor did Mamie assert any claim to this land as the sole owner until around 1935, when, after I. N. Newsom had attempted to obtain a loan from the Federal Land Bank, she advised him of the deed and offered to convey the land to him so that a loan could be obtained.
Mrs. M. F. Wellborn testified that she was the deputy chancery clerk in 1922; that she prepared the deed at
After Mrs. M. J. Newsom’s death in 1928, Mamie and the other children and heirs executed various leases and conveyances concerning the lands, as if Mamie were claiming only an heir’s interest. And after her mother’s death, she and the other children agreed that I. N. Newsom, one of the heirs, would stay on the place and take care of it. Mamie acknowledged on several occasions that she had only an heir’s part. With the exception of three years when I. N. Newsom was unable to pay taxes, appellant did not pay the taxes on the land. In addition, in 1933 the house on the property burned, and I. N. Newsom, in possession for all of the heirs, constructed a new house substantially at his own expense.
To offset all of this and other evidence indicating circumstantially and strongly that the 1922 deed never was delivered to Mamie, appellant relies only upon the above-stated presumptions of delivery. Yet the evidence amply rebuts those presumptions, and warranted the chancery court in finding that Mrs. M. J. Newsom did not deliver to appellant the 1922 deed.
The trial court held that appellant was incompetent to testify as a witness, because she' would be attempting to establish her own claim against the estate of a deceased person, in violation of Code of 1942, Section 1690. Clearly this is correct. Not only was the claim being asserted against the estate of her deceased mother, but also against the estates of her deceased
Affirmed.