Opinion
No. 40864.
October 13, 1958.
1. Deeds — mental capacity — evidence — sustained finding grantor had been without mental capacity to execute deed.
Evidence would sustain finding that grantor had been without mental capacity to execute deed.
2. Equity — it was error to cancel deed as to interest of grantor's heirs who were not parties to suit.
In action brought by one of grantor's heirs for cancellation of deed, it was error to cancel deed as to interest of those of grantor's heirs who were not parties to suit.
3. Equity — it was error for Chancellor to order lands sold and proceeds distributed where no such relief was sought.
In such suit, where no one sought to have land sold and proceeds divided, it was error for Chancellor to order lands sold by Commissioner and have proceeds distributed. Rule 6, subd. 2, Supreme Court Rules.
MOTION TO RETAX COSTSMay 18, 1959 111 So.2d 927
4. Costs — motion to retax costs untimely filed when not filed within 60 days.
Motion to retax costs, in deed cancellation case, was untimely when not filed within 60 days, and would be overruled. Rule 19, Supreme Court Rules.
Headnotes as approved by Roberds, P.J.
APPEAL from the Chancery Court of Pike County, F.D. HEWITT, Chancellor.
Reeves, Brumfield Reeves, McComb, for appellant.
I. The Lower Court erred in finding that Rosa Lang was under the influence of narcotics. 16 Am. Jur., Deeds, Sec. 371 p. 649.
II. The Lower Court erred in holding that Rosa Lang did not fully understand her act in deeding the property to the appellant. Cunningham v. Lockett, 216 Miss. 879, 63 So.2d 401; Exum v. Conty, 34 Miss. 533; Fortenberry v. Herrington, 188 Miss. 735, 196 So. 232; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Hamilton Brothers Co. v. Narciese, 172 Miss. 24, 158 So. 467; Humes v. Krauss, 221 Miss. 301, 72 So.2d 737; Johnson v. Johnson, 222 Miss. 454, 76 So.2d 246; Lambert v. Powell, 199 Miss. 397, 24 So.2d 773; Lang v. Jones, 224 Miss. 649, 80 So.2d 783; Moore v. Parks, 122 Miss. 301, 84 So. 230; Scally v. Wardlaw, 123 Miss. 857, 86 So. 625; 16 Am. Jur., Deeds, Sec. 376 p. 652.
B.D. Statham, Magnolia, for appellee and cross-appellant.
I. Rosa Lang did not have the physical and mental ability and faculties to execute a deed on October 14, 1954, and the appellant failed to meet the burden of proof to establish the validity of said deed. Curry v. Lucas, 181 Miss. 720, 180 So. 397; Ham v. Ham, 146 Miss. 172, 110 So. 583; Puryear v. Austin, 205 Miss. 590, 39 So.2d 257; 26 C.J.S., Deeds, Sec. 64; Thompson on Real Property, Sec. 3035.
II. The purported deed from Vert L. Simmons and Sam T. Simmons on October 8, 1954 was not sufficient to convey title because no grantee was named therein. Ivey v. Geisler, 213 Miss. 212, 56 So.2d 501; Morgan v. Collins, 157 Miss. 295, 127 So. 565; 16 Am. Jur., Deeds, Sec. 76; 26 C.J.S., Deeds, Sec. 17; Vol. VI, Thompson on Real Property, Sec. 3163.
III. The instrument from Vert L. Simmons and Sam T. Simmons, if sufficient to convey title, was not notice to E.C. Lang, who was an innocent purchaser for value without actual notice, for the reason that the acknowledgment was defective. Campbell v. State Highway Commission, 212 Miss. 437, 54 So.2d 654; Saffold v. Horne, 72 Miss. 470, 18 So. 433; Tinnin v. Brown, 98 Miss. 378, 53 So. 780; Walker v. Walker, 214 Miss. 529, 59 So.2d 277; Sec. 856, Code 1942.
APPELLANT AND CROSS-APPELLEE IN REPLY.
I. The appellee did not prove undue influence or such facts from which the presumption of undue influence would arise. Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41; Puryear v. Austin, 205 Miss. 590, 39 So.2d 257; Wall v. Wall, 177 Miss. 743, 171 So. 675.
II. The deed from Sam and Vert Simmons was sufficient to convey title to Rosa Lang. 16 Am. Jur., Deeds, Secs. 76, 82 pp. 482, 485.
III. The appellee had actual knowledge of the deed from Sam and Vert Simmons to Rosa Lang and although the recording of the instrument might have been improper the appellee is in no position to complain. Duke v. Clark, 58 Miss. 465; Wasson v. Connor, 54 Miss. 351; Woods v. Garnett, 72 Miss. 78, 16 So. 390; 19 Am. Jur., Estoppel, Secs. 88, 114 pp. 746, 769.
The errors assigned by appellant Leo Page are without merit. (Hn 1) The finding that Mrs. Rosa Lang was without mental capacity to execute the deed to appellant dated October 14, 1954, was supported by the evidence.
There are other errors which are not assigned but which we must notice under Rule 6 (2) Revised Rules of the Supreme Court. (Hn 2) The chancellor should not have cancelled the deed from Mrs. Rosa Lang to appellant except as to the interest of appellee. The other heirs of Mrs. Rosa Lang may not desire the relief. They were not parties to the suit. (Hn 3) No one sought to have the land sold and the proceeds divided, and it was error for the chancellor to order the land sold by a commissioner and the proceeds distributed as ordered.
The decree below is reversed insofar as it cancelled the deed from Mrs. Rosa Lang to appellant as to the interests in said land of the heirs of Mrs. Rosa Lang, other than appellee, but without prejudice to the other heirs to seek cancellation of the deed in another and proper action. The decree below is also reversed insofar as it ordered the lands sold and the proceeds distributed. The rights of appellant to claim reimbursement for the $300 paid Mrs. Vert Simmons for the deed to Mrs. Rosa Lang dated October 8, 1954, is not to be prejudicated by these proceedings.
Affirmed in part and reversed in part.
Hall, Holmes, Ethridge and Gillespie, JJ., concur.
ON MOTION TO RETAX COSTS
(Hn 4) This case was handed down and judgment entered therein on October 13, 1958. The judgment taxed the costs of the appeal against Lang. On May 1, 1959 Lang filed a motion in the cause asking that the costs be retaxed. The motion to retax the costs was not filed within sixty days as required by Rule 19, Revised Rules of the Supreme Court, nor does this case fall within the exception recognized by this Court in the case of Clara Richardson, et al. v. George V. Cortner, Trustee, (Miss.), 105 So.2d 456. It follows that the motion to retax must be and it is hereby overruled.
Motion to retax costs overruled.
Hall, Holmes, Ethridge, and Gillespie, JJ., concur.