Opinion
No. 43521.
May 10, 1965.
1. Cancellation of deeds — evidence — deed was a security device rather than conveyance of land.
Evidence in action to cancel deed supported finding that deed was security device rather than conveyance of land.
Headnote as approved by Gillespie, J.
APPEAL from the Chancery Court of Lauderdale County, WILLIAM NEVILLE, Chancellor.
Abston Herring, Meridian, for appellants.
I. The Court erred in finding that the appellees are unable to read and write, and are illiterate for all practical purposes, are not at all familiar with procedures and aspects of borrowing money and executing deeds of trust, and their understanding of any oral explanations is seriously limited, and that appellants are well educated and far superior to the appellees in knowledge, intellect, and ability. Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41; Wall v. Wall, 177 Miss. 743, 171 So. 675.
II. The Court erred in finding that it was not in the understanding or intention, at any time, of the appellees that they were to divest themselves of their title and interest in the land in question, and they had no knowledge they had executed a warranty deed to the appellants. Gillis v. Smith, 114 Miss. 665, 75 So. 451; Green v. Frazier, 242 Miss. 315, 135 So.2d 399; Manning v. Hammond, 234 Miss. 299, 106 So.2d 51; Osburn v. Thomas, 221 Miss. 682, 74 So.2d 757.
III. The Court erred in finding that the warranty deed was nothing more than additional security for the loan made to the appellees by the appellants. Carter v. Dobbs, 196 Miss. 692, 18 So.2d 747; Coleman v. Kierbow, 212 Miss. 192, 98 So.2d 463; Herrington v. Herrington, 232 Miss. 244, 98 So.2d 646; Lipe v. Souther, 224 Miss. 473, 80 So.2d 471; Pipes v. Webb, 236 Miss. 612, 111 So.2d 641.
Warner, Self Ray, Meridian, for appellee.
I. Evidence justified findings as to respective illiteracy and intellect of appellees and appellants. Emmons v. Emmons, 217 Miss. 594, 64 So.2d 753; Liddell v. Lee, 159 S.W.2d 769; Parker v. Jones, 130 S.W.2d 1072; Popovitch v. Kasperlik, 70 F. Supp. 376; Tate v. Murphy, 202 Okla. 671, 217 P.2d 177, 18 A.L.R. 2d 892; 13 Am.Jur.2d, Cancellation of Instruments, Sec. 13 p. 507; 26 C.J.S., Deeds, Secs. 54, 58 pp. 720, 737.
II. Evidence established that appellees never intended, nor were they aware that they had executed a warranty deed to appellants.
III. Said deed was nothing more than additional security, and should have been cancelled when appellees' indebtedness to appellants was satisfied. Bethea v. Mullins, 226 Miss. 795, 85 So.2d 452; Emmons v. Emmons, supra; Nix v. Nix, 210 Miss. 821, 50 So.2d 396; 16 Am. Jur., Deeds, Sec. 33; 13 Am.Jur.2d, Cancellation of Instruments, Sec. 25 p. 519; Griffith's Mississippi Chancery Practice (2d ed.), Sec. 35.
IV. Absence of mutual understanding between the appellants and appellees that the appellees were to convey any property to the appellants is grounds for equitable cancellation of the instrument. Allen v. Luckett, 94 Miss. 868, 48 So. 186; Baas v. Zinke, 218 Mich. 552, 188 N.W. 512, 59 A.L.R. 809; Chicago, St. P., M. O.R. Co. v. Washburn Land Co., 165 Wis. 125, 161 N.W. 358, 59 A.L.R. 809; Glenn v. Morgan, 249 Miss. 493, 163 So.2d 239; Howell v. Howell, 213 Miss. 141, 56 So.2d 392; Huiller v. Ryan, 306 Ill. 888, 137 N.E. 484; 13 Am.Jur.2d, Cancellation of Instruments, Secs. 32, 33, 37 pp. 524, 526; 26 C.J.S., Deeds, Sec. 55 p. 733; A.L.I., Restatement of the Law (Restitution), Sec. 16C p. 70.
V. Consideration given was so inadequate as to justify equitable relief by way of rescission of the purported warranty deed. Emmons v. Emmons, supra; Hatcher v. Union Trust Co., 174 Minn. 241, 219 N.W. 76; Lee v. Wilkinson, 105 Miss. 358, 62 So. 275.
VI. Where evidence is conflicting, Chancellor's finding on disputed question of facts will not be disturbed on appeal if supported by substantial evidence, and not manifestly wrong. Alliance Trust Co. v. Armstrong, 185 Miss. 148, 186 So. 633; Ascher Baxter v. Edward Moyse Co., 101 Miss. 36, 57 So. 299; Carter v. Dobbs, 196 Miss. 692, 18 So.2d 747; Coleman v. Kierbow, 212 Miss. 541, 54 So.2d 915; Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Green v. Frazier, 242 Miss. 315, 135 So.2d 399; Harris v. Armstrong, 232 Miss. 192, 98 So.2d 463; Herrington v. Herrington, 232 Miss. 244, 98 So.2d 646; Little v. Dalrymple, 242 Miss. 365, 135 So.2d 403; Lipe v. Souther, 224 Miss. 473, 80 So.2d 471; McCaffrey v. Mills, 250 Miss. 649, 167 So.2d 816; Olmstead v. Olmstead, 233 Miss. 621, 103 So.2d 399; Wall v. Wall, 177 Miss. 743, 171 So. 675; Griffith's Mississippi Chancery Practice (2d ed.), Sec. 674.
Ollie Dubose, Sr., and his wife, Lula Mae Dubose, filed their original bill of complaint against Lamar Lane and his wife, Pearl Lane, for the cancellation of a deed, contending that at most the deed was but additional security for a loan, and making various and sundry other averments.
The chancellor sustained the bill of complaint and found that while there was no fraud on the part of the defendants, the complainants never had any intention of conveying their property by deed to defendants, and that under all the circumstances the deed should be cancelled as having been given for the purpose of securing an indebtedness, the indebtedness having been paid in full by the complainants.
The complainants were illiterate, and most of the evidence in their behalf was undisputed. The purported deed was obtained for a small fraction of the value of the land purportedly conveyed. The actions of the parties subsequent to the deed for a period of five or six years strongly indicated that both parties had treated the instrument as a security device rather than as a conveyance of land. The chancellor was amply justified in entering a decree cancelling the deed.
(Hn 1) A careful reading of the record and study of the contentions of the parties reveals no error upon which this Court could justify a reversal.
Affirmed. Lee, C.J., and Ethridge, Patterson and Inzer, JJ., concur.