White v. Jones, 83 Miss. 231

White v. Jones

83 Miss. 231 | Miss. | 1903

‘OaehooN, J.,

delivered tbe opinion of tbe court.

Certain devisees (appellees bere) of certain specified lands under the will of their grandfather, J. 0. White, filed their bill in chancery, alleging that bis son, tbe appellant, Walter M. White, procured from bim a deed twelve days before bis death, conveying to bis said son bis entire estate, real and personal, on credit, and upon a consideration grossly inadequate, even as recited in tbe deed. They aver that tbe execution of this instrument was procured by undue influence, and that J. 0. White was of unsound mind when be executed it. Issue was joined on these last two propositions, and tried by a jury, which was impaneled on tbe motion of appellant himself, and it decided both issues against bim and in favor of tbe appellees, and the decree of tbe court reciting that, “defendants having elected to have tbe issues of fact tried by a jury,” and reciting the impanelment, “after bearing tbe evidence” and reciting tbe verdict, decreed tbe cancellation of tbe deed, and that tbe will was in full force as to tbe land devised. From this Walter M. White appeals on the naked record, with no bill of exceptions setting out any testimony whatever, and bis only point is that tbe record shows no agreement in writing that oral testimony might be taken, and bis sole reliance for reversal is on tbe case of Dickerson v. Askew, 82 Miss., 436; s. c., 34 So. Rep., 157, decided by this court.

Tbe record does show that tbe trial was bad and tbe decree *234rendered on February Y, 1903, and it sets out an agreement of counsel thereafter made, and of date June 23, 1903, by which it is agreed that before the hearing it had been agreed that the proof should be oral, and that it was so stated at the hearing to the court. This agreement further states that the prior agreement. was agreed to be put in writing and filed, but “by inadvertence and oversight” its formal preparation ’ in writing was omitted. It then proceeds thus: “Now, therefore, to supply said omission, this agreement is filed this 13th day of June, A. D. 1903,” and it is signed by the counsel of the respective parties. This agreement puts of record in writing nunc fro tunc the act.ual precedent agreement, and is enough to satisfy the law. Grego v. Grego, 78 Miss., 443; 28 South., 817. Besides, Dickerson v. Askew has no relevancy to cases tried by jury. Code 1892, §§ 50Y, 555.

Affirmed.