Opinion
No. 35036.
October 5, 1942.
DEEDS.
Evidence that ignorant colored grantor understood from educated grantee's statements preceding execution of deed that grantor had lost title to land or that it would require payment of over $300 to redeem it after it had been sold to the state for nonpayment of taxes, that land was then valued at $620 for tax purposes, and that grantee procured deed from grantor for $40 warranted cancellation of deed.
APPEAL from the chancery court of Yazoo county, HON. M.B. MONTGOMERY, Chancellor.
Campbell Campbell, of Yazoo City, for appellant.
The misrepresentations of A.J. Day to Andella Stuckey Jackson, that he was the owner of her lands, induced her to part with the title thereto, and was a material misrepresentation and coupled with the grossly inadequate consideration is sufficient to require the deed to be set aside.
State Highway Commission v. Powell et ux., 184 Miss. 266, 185 So. 589; Rimer v. Dugan, 39 Miss. 477, 77 Am. Dec. 687; Griffith's Miss. Chancery Practice, Sec. 589; 16 Am. Jur., Deeds, Secs. 31, 33.
The gross inadequacy of the consideration paid to appellant, coupled with her ignorance, poverty, lack of advice and counsel, and her reliance on the appellee in the transaction creates such an inequitable advantage in appellee that no count of equity can approve the transaction.
Caulk v. Burt, 112 Miss. 660, 73 So. 618, suggestion of error sustained 114 Miss. 487, 75 So. 369; Norfleet v. Beall, 82 Miss. 538, 34 So. 328; Clark v. Lopez, 75 Miss. 932, 23 So. 648; Nubby v. Scott, 186 Miss. 309, 190 So. 911; Leach v. Hirshman, 90 Miss. 723, 44 So. 33.
The representations of Day to the appellant, admitted by him, that the State of Mississippi had title to her lands, and that as much as ten years' taxes, amounting to $300, were due thereon, were relied on by both parties, and were erroneous, resulting in a mutual mistake of fact, and the deed should therefore be canceled.
Smith v. Hendrix, 181 Miss. 229, 178 So. 819; Russell Inv. Corp. v. Russell, 182 Miss. 385, 182 So. 102; Allen et al. v. Luckett, 94 Miss. 868, 48 So. 186; Alexander v. Meek, 132 Miss. 298, 96 So. 101; Hoy v. Hoy, 93 Miss. 732, 48 So. 903; Alabama V.R. Co. v. Jones, 73 Miss. 110, 19 So. 105.
H.G. Warren, of Yazoo City, for appellee.
A.J. Day made no misrepresentations to appellant. He did not claim to be the owner of her lands and the consideration was not so inadequate as to afford appellant relief.
Alabama V. Ry. Co. v. Kropp, 129 Miss. 616, 92 So. 691; Alabama V. Ry. Co. v. Turnbull, 71 Miss. 1029, 16 So. 346; Caulk v. Burt, 112 Miss. 660, 73 So. 618, suggestion of error 114 Miss. 487, 75 So. 369; Norfleet v. Beall, 82 Miss. 538, 34 So. 328; Clark v. Lopez, 75 Miss. 932, 23 So. 648; Leach v. Hirshman, 90 Miss. 723, 44 So. 33.
The statements by Day were not false and the appellate court is bound to assume that the chancellor was right in holding that said statements were not relied upon by appellant.
State Highway Commission v. Powell, 184 Miss. 266, 185 So. 589. J.O. Day, of Tutwiler, for appellee.
It is conceded, of course, that if there were fraud, or misrepresentations, or gross ignorance, or inadequate consideration, or over-reachings, or duress, or undue influence exerted, the appellant-complainant would be entitled to relief. Certainly. However, none of these iniquities are established by the proof in this record. Only in the argument and brief of counsel for appellant do you find all these imaginary wrongs and evils advanced, by way of insinuations, doubts, suspicions and inferences.
Sales and other transactions will not be set aside as fraudulent in fact unless the averments and the proof thereof be clear and satisfactory. Doubts, suspicions and inferences will not suffice.
Griffith's Mississippi Chancery Practice, Sec. 501.
Fraud is not a thing to be lightly charged and most emphatically is not a thing to be lightly established.
Griffith's Mississippi Chancery Practice, Sec. 589.
There can be no undue influence unless it is such as to take away the free agency of the grantor.
Gillis et al. v. Smith et al., 114 Miss. 665, 75 So. 451.
Where a grantor had never been declared insane or treated for any mental disease, and there was no attempt to show that she was a natural fool, her deed could not be set aside, if she had sufficient mental capacity to understand in a reasonable manner the nature of the particular transaction in which she was engaged and its consequences and effects.
Gillis et al. v. Smith et al., supra.
The party alleging fraud or undue influence in procuring of deed has burden of proving it.
Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41.
Persons of sound mind, except those under 21 years and those who have been over-reached, must abide by the consequences of their solemn deliberate acts in executing deeds.
Cresswell v. Cresswell, supra.
There is no undue influence sufficient to set aside a deed, unless the influence took away the free agency of the grantor; for not every influence is undue, and undue influence cannot be predicated of any act, unless free agency is destroyed. Influence exerted by means of advice, arguments, persuasions, solicitations, suggestion, or entreaty is not undue, unless it is so importunate and persistent, or otherwise so operates, as to subdue and subordinate the will and to take away free agency.
Burnett v. Smith, 93 Miss. 566, 47 So. 117.
This is an appeal from a decree of the chancery court dismissing the bill of appellant seeking to set aside and cancel a deed which she executed to A.J. Day, February 6, 1941, conveying to him fifty-three acres of land located in Yazoo County, Mississippi. The bill is grounded upon misrepresentations and overreaching of appellant by appellee and mutual mistake as to material facts, which induced the execution of the deed.
This is a fair summary of the facts: Andella Jackson became the owner of the lands under a partition deed in 1917. Shortly thereafter, she moved from Yazoo County to Coahoma County, Mississippi. She left the lands in charge of Westly Stuckey, her brother. She had been back to the old home only once — in 1927. Her brother had rented out the lands and paid the taxes thereon and from time to time remitted to her at least a part of the rents therefrom. At the time of the events hereinafter related, she was living some six or seven miles from Clarksdale with a married daughter who was a tenant on a large plantation in Coahoma County. She was a negro woman fifty-six years of age, ignorant and illiterate, unable to read or write.
Mr. Day was an educated, retired businessman, fifty-nine years of age, living at Bentonia in Yazoo County, some two miles from the land in controversy, his principal occupation consisting in looking after his rental properties.
On August 1, 1932, the lands sold to the State of Mississippi for nonpayment of the taxes thereon for the year 1931. Andella did not know of this sale and her brother said he did not know the land had sold for taxes. He thought he had kept all taxes paid.
Mr. Day learned of the tax sale to the state. He was familiar with the land. In 1939, he applied to the State for a patent but he was unable to obtain it. It appears that he consulted an attorney and decided he would attempt to procure a deed from Andella Jackson. He went to Clarksdale with a prepared deed and procured the services of Mr. W.R. Ellis, a justice of the peace of Clarksdale, who accompanied him and another white man into the country in search of Andella for the purpose of obtaining from her a deed to the land. They were unable to find her. Mr. Day returned to his home. He did not mention to Westly his desire to acquire the land, nor make inquiry of him as to where he might find Andella. Some six weeks thereafter and on February 5, 1941, Mr. Day accompanied by a negro by the name of Shelby, who, it appears, resided in the old home neighborhood of Andella and who was acquainted with her in days gone by, went back to Coahoma County for the purpose of obtaining this deed. They found the home of Andella. Mr. Day left Shelby at her home and drove back to Tutwiler, some distance, and spent the night with his brother. Shelby spent the night at the home of Andella. During his stay, Andella expressed a desire to visit her old home and Shelby suggested that Mr. Day would be glad to take her without charge. It is not clear which one originated the idea of the trip. The next morning, Mr. Day appeared and Andella and Shelby got in his automobile. When they arrived at "Two Try Hill" on the outskirts of Clarksdale, Mr. Day stopped his car and got on the back seat with Andella, Shelby being on the front seat. Mr. Day said he stopped at this particular place because he wanted privacy of conversation.
Andella says that Mr. Day then told her that her land had sold to the State for taxes and that he had procured a patent from the state thereto, but that in order to keep her from feeling badly he would give her $40 and that, not knowing anything about the facts and relying on what Mr. Day told her and thinking she had lost her land, she agreed to execute the deed.
Mr. Day denied that he told her he had a patent to the land. His version of what he said is this: "I told her the condition her land was in. It was sold to the State and the State had the title on record, and I didn't know whether any taxes had been paid on it since that time or not, that I had not gone into that phase of it, but if there hadn't there was about either nine or ten years back taxes due on it, and in order to clear that up, it was my understanding, that would have to be paid, which with the principal and the interest would amount to better than Three Hundred Dollars; and that I didn't suppose she had the money to pay that with even if she could get it back and she said she didn't, and then I asked her would she consider giving me a quit-claim deed so I would have a chance to clear it up in my own name and she said she would because that was the only way she figured she could get anything out of it. I said, `well what would you be willing to take for your interest in it?' And she said, `she didn't know,' and I asked her if forty dollars would satisfy her, and she said `yes.'"
It might be further added that Mr. Day was not only armed with the prepared deed but he also had with him a copy of the record of the tax sale of 1932, certified by the chancery clerk. He said he produced and read to Andella the deed and the record of this tax sale.
He then carried her to the office of Mr. Ellis, the justice of the peace. The deed was not read to her but Mr. Ellis asked her if she understood what it was and she said she did. It was then executed by use of a mark for her signature. Mr. Ellis taking the acknowledgment and calling in two persons as witnesses. Mr. Day paid her the $40 and she and Day and Shelby left. They proceeded to Yazoo County, Andella going to the home of her sister. She then learned that all of the taxes had been paid on the land except for the year of the sale. She promptly went to see Mr. Day and offered to repay him the $40 which he refused to accept, seeking a reconveyance to her of the land, which he refused to do. She immediately filed this bill.
Mr. Day says that he did not tell her that he had a patent to the land. Shelby says he did not hear the conversation. Mr. Ellis, who was paid by Mr. Day for his services on both trips and who was a witness for Mr. Day, said that Mr. Day told him on both trips that he had a patent to the land, and since the record does not disclose that Day saw Ellis on the second trip at any time other than the occasion on which the deed was executed, this means the second statement by Mr. Day, if made, was in the presence of Andella. The great weight of the evidence is to the effect that Mr. Day did represent to Andella that he had a patent to the land.
It might be further added that when the land sold for taxes it was valued for tax purposes at $620. The witnesses for Mr. Day valued it for agricultural purposes at $6 to $8 per acre and those of the appellant at around $12 per acre. It is clear in any view that the consideration paid was grossly inadequate. It might also be added that this court had held that tax sales for nonpayment of state and county taxes on August 1, 1932, were void. Smith v. Hendrix, 181 Miss. 229, 178 So. 819.
It is very evident that Andella understood from the acts and statements of Mr. Day, whether he so intended or not, that she had entirely lost title to her land, or that it would require the payment of over three hundred dollars to redeem it, one situation as hopeless of remedy by her as the other. Neither was correct. This woman was ignorant, did not know her rights or the facts, and had no one to advise her. Situated as these parties were, this transaction cannot stand in a court of equity, whether based upon misrepresentation, wittingly or unwittingly made, of material fact (16 Am. Jur., pg. 456, sec. 33; Rimer v. Dugan, 39 Miss. 477, 77 Am. Dec. 687; Clark v. Lopez, 75 Miss. 932, 23 So. 648, 957; Norfleet v. Beall, 82 Miss. 538, 34 So. 328; Leach v. Hirshman, 90 Miss. 723, 44 So. 33; Caulk v. Burt, 114 Miss. 487, 75 So. 369, on sustaining suggestion of error) or upon mutual mistake of such fact (Alabama V. Ry. Co. v. Jones, 73 Miss. 110, 19 So. 105, 55 Am. St. Rep. 488, and Hoy v. Hoy, 93 Miss. 732, 48 So. 903, dealing with mistake of law as to private legal rights and interest; Allen et al. v. Luckett, 94 Miss. 868, 48 So. 186, 136 Am. St. Rep. 605; Alexander v. Meek, 132 Miss. 298, 96 So. 101); inducing the execution of this deed.
Reversed and remanded for entry of decree in accordance herewith and accounting of rents and tax payments, etc., since the execution of the deed.