Spencer v. Spencer

75 So. 770 | Miss. | 1917

Stevens, J.,

delivered the opinion of the court.

Appellant, as defendant in the court below, prosecutes this appeal from an order overruling a demurrer to the bill of complaint exhibited by appellee T. H. Spencer, seeking to reform a deed executed by Carrie T. Spencer, the mother of the parties hereto, whereby certain lands were conveyed to the appellee and in which there is an alleged mistake. The litigation presents an unfortunate controversy between brothers. The bill charges that S. M. Spencer, Sr., the father of both appellant and appellee, was at one time the owner of certain valuable plantations in Washington county, a division of which he intended to make among his four children, the two sons, parties to this litigation, and two' daughters; that while the property originally belong to Mr. Spencer, Sr., it was, on account of financial embarrassments, conveyed to Carrie T. Spencer, appellee’s mother; that the father exercised absolute supervision and control of the property while he lived and often expressed á desire that what is known as Glenn Allen plantation should be conveyed by deed to the two daughters, and the Otterburn plantation, consisting of one thousand four hundred and eighty two acres, should be conveyed to the two sons; that Carrie T. Spencer, the mother, was advised of these plans and concurred therein; that appellant prevailed upon his father to postpone a division of the Otterburn plantation for a year or two in order to permit appellant, who was living upon and managing or supervising this plantation, to work out a debt then existing on said property. The bill further charges that the father contemplated deeding six hundred acres of Otterburn plantation to the complainant, and the remainder, embracing the gin, mansion house, and other improvements, was to be deeded to appellant ; that the latter was to discharge the indebtedness, and to build for his brother, the appellee, a residence valued at two thousand five hundred dollars; that this was the division which the parents contemplated making and which they frequently discussed with other members of the family. The bill further charges that this plan was never executed during the lifetime of Mr. Spencer, Sr., but that, after the death of the father, the mother undertook to carry out the division of the estate; that appellant, being the older of the two sons and having the active management of the property, exercised great influence with his mother, then an aged woman, and induced her to agree upon giving appellee only four hundred acres of Otterburn; that complainant in the interest of peace yielded to this plan; that appellant in the execution of this plan employed a civil engineer to partition the plantation, and himself pointed out to the engineer the land which was to be allotted to appellee and, after having the survey made, went to Greenville and had deeds prepared conveying.to the two daughters the Glenn Allen plantation and conveying to appellant and appellee Otterburn plantation; that in having the deed prepared the deed to appellant conveyed all of the Otterburn plantation, excepting that portion conveyed to appellee, the complainant ; that the separate deed in favor of appellee as a matter of fact embraced only three hundred and seventeen acres, but appellant represented both to his mother and to the complainant that it contained more than four hundred acres. The bill charges that the deed was executed as a result of the fraud of appellant and was accepted without any knowledge or intimation to the complainant that the deed had a shortage in the acreage. It is charged that eighty three acres should have been conveyed in the deed to the complainant in addition to the lands therein described, and that this eighty three acres are worth several thousand dollars. Appellant answered so much of the bill 'as charged fraud, and with his answer submitted a demurrer.

There is only one ground of the demurrer which merits discussion. Appellant by demurrer challenges the right of the complainant as a voluntary grantee to any reformation whatever. Appellant invokes the general rule that a voluntary conveyance is not supported by a consideration, and that such instrument cannot be reformed unless there is some consideration or unless all parties consent. The rule invoked by appellant would certainly apply were this a contest between complainant, as grantee, and his mother, the donor. The bill shows that the mother is dead, and therefore she, as grantor, cannot maintain a bill against appellant to correct the alleged mistake. This then being a contest between the two sons of the grantor, a contest between heirs, both of whom are voluntary grantees, the rule invoked by appellant does not apply. If as a matter of fact the mother intended to convey a larger portion of the plantation to the younger son, then his equity, in our judgment, is superior to the right 'of the other brother to rely upon the defense here interposed. The transaction set out in the bill is in the nature of a family settlement, and conveyances in execution of a family settlement constitute an exception to the rule. As stated"by our court in Miles v. Miles, 84 Miss. 624, 37 So. 112:

“All parties deraign from a common source, and stand before the court in the same attitude as if they had inherited the property jointly, and then undertaken to amicably divide the same, and a mutual mistake had occurred in their deeds of partition. . . . The power of a court of equity to reform instruments and. correct mistakes growing out of such transactions in proper cases is universally recognized.”

The Miles Case is the only one by our court to which counsel direct our attention as bearing directly upon the question presented for decision. We find very few cases on the main point of this case. The cases of Wycke v. Greene, 16 Ga. 49, and McMechan v. Warburton, Irish Law Reports, 1 Ch. Div. 435 (Irish Law Reports 1895, 1896, p. 566), are applicable.

The latter case presented the same situation as here— where the donor is deceased and the contest is between the grantees. The syllabus reads:

“The court will rectify a voluntary deed after the death of the donor where it is clearly shown that, through mistake, the deed failed to carry out the proved intention of the donor.”

In the opinion of the Vice Chancellor rendered in 1894, it is said:

, “It was contended by the defendant Warburton that, as this was a voluntary deed, this court cannot interfere to rectify it in favor of volunteers. The elementary principle of this court,-that it will not interfere to enforce specific performance of an incomplete voluntary agreement, or to rectify an erroneous voluntary disposition of property in favor of a volunteer, is subject to this exception, that after the death of the donor it will interfere to rectify a disposition which is clearly proved to have, through mistake, failed to carry out the proved intention. The principle is, I think more correctly stated by confining it to this, that the court will not rectify a voluntary disposition against the donor. That it will do so in favor of a donor is shown by the case of Lackersteen v. Lackersteen, 30 L. J. Ch. (N. S.) 5, where a voluntary settlement was rectified by Wood, V. CL, at the instance of the settlor. This explains the view taken by Romilly, M. R., in Lister v. Hodgson, L. R. 4 Eq. 34, where he stated the exception I have mentioned in case of a deceased donor, that upon clear proof of the intention of the donor, which, by a mistake, was not correctly carried out by the instrument of gift according to such intention, this court will interfere to correct the mistake, and thus act in favor of. the intention. If the donor were living it would have, of course, been competent for him to consent to such rectification, or to dissent from it. If the later, it could not be reformed against his will, for a volunteer must take the gift as he finds it; but after his death, and in absence of proof of any change of intention, it cannot be assumed that he would have dissented, and it might even be presumed that he would not dissent. In this view, Lister v. Hodgson, L. R. 4 Eq. 30, is not a departure from the true principle, and it is certainly an authority for the plaintiffs on this point.”

The court of appeal unanimously affirmed this decision of the Vice Chancellor, and the language which we have quoted, we believe, expresses the better view. We unhesitatingly adopt it as equitable. The action of the learned chancellor in overruling the demurrer is approved, and the cause remanded, with leave to appellant to answer the bill within thirty days after receipt of mandate by the chancery clerk.

Affirmed and remanded.