Summary
In Shepherd, Mr. and Mrs. Shepherd had borrowed from Dr. Johnston money necessary to purchase a tract of land, doing so under an alleged oral agreement "whereby Dr. Johnston was to advance the amount necessary to handle the transaction, and they were each to acquire a one-half undivided interest therein."
Summary of this case from Bourn v. BournOpinion
No. 36262.
January 13, 1947. Suggestion of Error Overruled February 10, 1947.
1. DISCOVERY.
Under statute, complainants claiming ownership to a one-half undivided fee-simple interest in land, the legal title to which was in defendant, based upon alleged resulting trust, were entitled to inspection of books and records kept by defendant's late husband during his lifetime pertaining to purchase and operation of the land (Code 1942, sec. 1659).
2. WITNESSES.
In suit to establish alleged resulting trust in land, title to which was in defendant, testimony by complainants as to alleged agreement between themselves and defendant's husband, now deceased, for purchase of the land, for agreement that defendant should take title so that it would serve as security for amount loaned to complainants by defendant's husband and as to repayment of the loan was erroneously excluded under dead man's statute prohibiting a person from testifying as a witness to establish his own claim against estate of a deceased person (Code 1942, sec. 1690).
3. WITNESSES.
The dead man's statute creates an exception to general rule as to competency of a witness, and, being an exception, it must be strictly construed in favor of competency of the witnesses (Code 1942, sec. 1690).
4. WITNESSES.
Testimony must be in support of a direct claim of the witness against estate of a deceased person as distinguished from an indirect or consequential claim against the estate, in order to render it incompetent under dead man's statute prohibiting a person from testifying as a witness to establish his own claim against the estate of a deceased person (Code 1942, sec. 1690).
5. TRUSTS.
Where suit in which complainants were claiming ownership to a one-half undivided fee-simple interest in land, legal title to which was in defendant, was not predicated directly upon alleged oral contract between complainants and defendant's husband, now deceased, for purchase of the land, but was predicated upon alleged resulting trust under which defendant acquired legal title to be held as security for a loan made by defendant's husband to complainants, the suit was not an effort to enforce an oral contract for purchase of land contrary to statute of frauds (Code 1942, secs. 264, 269).
6. LIMITATION OF ACTIONS.
Where complainants, seeking to establish a resulting trust in land, legal title to which was in defendant, alleged that they had entered into an agreement with defendant's husband, now deceased, whereby defendant's husband should advance complainants their one-half of the purchase price and that title to land should be taken in defendant, so that it would serve as security for the loan, suit to establish resulting trust did not accrue under alleged agreement until complainants had fully paid the loan, as regards issue whether it was barred by 10 year statute of limitations (Code 1942, sec. 709).
APPEAL from the chancery court of Warren county. HON. J.L. WILLIAMS, Chancellor.
Creekmore Creekmore, of Jackson, and Brunini, Brunini, Everett, of Vicksburg, for appellants.
The court should have sustained appellant's motion for an inspection of the books of Dr. S.W. Johnston.
Equitable Life Assurance Society v. Clark, 80 Miss. 471, 31 So. 964; Robertson v. Greenwood Lumber Co., 127 Miss. 793, 90 So. 487; Knox v. L.N. Dantzler Lumber Co., 148 Miss. 834, 114 So. 873; W.T. Rawleigh Co. v. Hester, 190 Miss. 329, 200 So. 250; Code of 1942, Sec. 1659; Griffith's Mississippi Chancery Practice, Sec. 542, p. 589.
The appellants, J.H. Shepherd and Mrs. Vergie D. Shepherd, were competent witnesses. In order for a person to be held incompetent as a witness under Section 1690, Code of 1942, the estate of the deceased party, i.e., the executor or administrator or the heirs of the deceased, should be a party to the litigation, and, further, the testimony should be in support of a direct claim of the witness against the estate of the deceased person, as distingquished from an indirect or inconsequential claim against the estate.
Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676; Taylor v. Webb, 54 Miss. 36; Simmons v. Ingram, 60 Miss. 886; Simpson v. McGlathery, 52 Miss. 723; Robertshaw v. Hanway, 52 Miss. 713; Tuteur v. Brown, 74 Miss. 774, 21 So. 748; Peeples v. Yates, 88 Miss. 289, 40 So. 996; Lewis v. Jefferson, 173 Miss. 657, 161 So. 669; Faler v. Jordan, 44 Miss. 283; Love v. Stone, 56 Miss. 449; Fennell v. McGowan, 58 Miss. 261; Combs v. Black, 62 Miss. 831; Cole v. Gardner, 67 Miss. 670, 7 So. 500; Jones v. Warren, 70 Miss. 227, 14 So. 25; Jones v. Bank of Carrollton, 71 Miss. 1023, 16 So. 344; Horne v. Nugent, 74 Miss. 102, 20 So. 159; Cock v. Abernathy, 77 Miss. 872, 28 So. 18; Cockrell v. Cockrell, 83 Miss. 385, 36 So. 390; Garner v. Townes, 134 Miss. 791, 802, 100 So. 20; Davis v. Crawford, 175 Miss. 493, 168 So. 261; Security Mutual Life Ins. Co. v. Brunson, 176 Miss. 893, 170 So. 824; McFarlane v. Plant, 185 Miss. 616, 188 So. 530; Code of 1942, Sec. 1690; Griffith's Mississippi Chancery Practice, Secs. 102, 103.
This statute creates an exception in regard to the general rule as to competency of witnesses, and being an exception it must be strictly construed in favor of the competency of the witness. The exception must come within the letter and the spirit of the act.
Covington v. Frank, 77 Miss. 606, 27 So. 1000; Steen v. Kirkpatrick, 84 Miss. 63, 36 So. 140.
Appellee did not cross-appeal in this case. Therefore, this Court will not consider appellee's point that her demurrer should have been sustained.
Breithaupt v. Dean, 144 Miss. 292, 109 So. 792.
This Court is a court of appeal, and will not pass on questions neither presented to nor decided by the trial court.
Yazoo M.V.R. Co. v. Wallace, 90 Miss. 609, 43 So. 469; Adams v. Clarksdale, 95 Miss. 88, 48 So. 242; Estes v. Memphis C.R. Co., 152 Miss. 814, 119 So. 199; Adams v. Union Co., 177 Miss. 403, 170 So. 684; Code of 1942, Sec. 1290.
Lamar F. Easterling, of Jackson, and John H. Culkin and James D. Thames, both of Vicksburg, for appellee.
Complainants predicate their right to recover upon an oral contract for the purchase of lands, which said oral contract clearly comes within the terms and provisions of the statute of frauds.
Code of 1942, Secs. 264, 269.
The alleged claim of the complainants is barred by the statute of limitations.
Bush v. Bush, 134 Miss. 523, 99 So. 151; Hughes v. Letcher et al., 168 Ala. 314, 52 So. 914; Code of 1942, Sec. 709; 54 Am. Jur. 159, Sec. 204.
The complainants cannot prove their own claim against the estate of Dr. S.W. Johnston, deceased, contrary to the statutes of this State.
Brown et al. v. Parker, 143 Miss. 291, 108 So. 492; Jackson v. Smith, 68 Miss. 53, 8 So. 258; Rothschild v. Hatch, 54 Miss. 554; Code of 1942, Sec. 1690.
Appellants' motion for an inspection of the books of Dr. S.W. Johnston was properly overruled. The motion was not timely made, nor did it allege sufficient facts to warrant the court in permitting the complainants to inspect the said books. The trial court correctly held that there was no good cause shown, for an inspection of these books, at the time it was made; and, certainly, there is nothing which would show an abuse of the discretion vested in the trial court, in passing upon this question.
Code of 1942, Sec. 1659.
Argued orally by Rufus Creekmore, for appellants, and by James D. Thames, for appellee
The claim of ownership on the part of the appellants, J.H. Shepherd and wife, to a one-half undivided fee-simple interest in the 1935 acres of land involved herein, the legal title to which is held by the appellee, Mrs. Mattie H. Johnston, is predicated upon an alleged resulting trust arising by operation of law under the following circumstances, to-wit:
That on, and prior to, January 29, 1935, the appellant, J.H. Shepherd, was in possession of the said land under a lease contract, and shortly before the lease expired he was offered the opportunity to purchase the same for $4,200 from the then owners, Mrs. Mary Richardson and others; that not having the money with which to finance the purchase, he undertook to borrow the same from Dr. S.W. Johnston, husband of the appellee; that as a result of his efforts in that behalf an agreement was finally reached whereby Dr. Johnston was to advance the amount necessary to handle the transaction, and they were each to acquire a one-half undivided interest therein; that it was therefore agreed that Dr. Johnston would make a loan of $2,100 to Mr. and Mrs. Shepherd with which to purchase their said one-half interest, and with the understanding that the deed of conveyance from Mrs. Mary Richardson and others should be executed in favor of the appellee, Mrs. Mattie H. Johnston, in order that the title might be held by her in trust, and as security for the loan, until the Shepherds should fully repay the same; and that thereupon a deed would be executed by Mrs. Johnston in favor of the Shepherds for their one-half undivided fee-simple interest in the land.
That the loan of $2,100 was charged against the Shepherds on the books of Dr. Johnston, and was fully repaid prior to the end of the year 1938, out of the part of the profits belonging to the Shepherds, which were derived from the operation of the land by them during the intervening years.
The suit to establish this alleged resulting trust is brought against Mrs. Mattie H. Johnston as sole defendant, and is based upon her refusal to convey to the complainants, Mr. and Mrs. Shepherd, the one-half undivided fee-simple interest aforesaid.
Dr. Johnston had died prior to the filing of the suit, and a motion was made at the hearing, containing all necessary and proper averments, and otherwise meeting all legal requirements whereby the complainants asked for an inspection and copy of the books and records kept by Dr. Johnston in his lifetime pertaining to the purchase and operation of the land in question. It is alleged in the motion that the said books and records contain data showing that such $2,100 loan had been made, and also that the same had been fully repaid. The inspection was asked to be allowed at the office of the Chancery Clerk, and subject to such terms and conditions as the court might deem proper. This motion was overruled, and the action of the trial court in that behalf is one of the grounds assigned as error on this appeal.
Under section 1659, Code 1942, Griffith's Chancery Practice, section 542, and the cases of Equitable Life Assurance Society v. Clark, 80 Miss. 471, 31 So. 964; Robertson v. Greenwood Lbr. Co., 127 Miss. 793, 90 So. 487, and Knox v. L.N. Dantzler Lbr. Co., 148 Miss. 834, 114 So. 873, the complainants were entitled to the inspection, as requested, and it was reversible error, under the rule announced in the foregoing decisions, to have overruled the motion in that behalf.
At the trial the complainants offered to testify as to the alleged agreement between themselves and Dr. Johnston for the purchase of the land, and as to the repayment of the purchase price for their one-half interest therein on the basis hereinbefore set forth. An objection was sustained to such testimony when offered, for the reason that it was deemed by the court to be in support of their claim against the estate of the said Dr. Johnston, a deceased person. But we are of the opinion that the court was in error in excluding this testimony, since neither the estate of Dr. Johnston nor any of his heirs at law, other than his wife, were parties to this suit. They could not, therefore, be bound by any decree that may have been predicated upon this testimony in the present suit. The trial court held that they were not necessary parties to the instant suit, and there is no cross appeal from that action in overruling a demurrer which raised the question of non-joinder of necessary parties.
Since the defendant, Mrs. Mattie H. Johnston, had expressly denied in her answer that Dr. Johnston's estate has any interest in the land in controversy, and she contended both in her answer and in her testimony as a witness at the trial that she purchased that land in her own right, and is now the sole owner of the fee-simple title thereto, it will be readily seen that the proffered testimony would tend to establish the claim of the complainants against her, and to show that she is holding the title under a resulting trust, as aforesaid, instead of in her own right, as contended by her.
Therefore, as between the complainants and the said defendant, their testimony would tend to establish an equitable interest in one-half undivided interest in the land in favor of the estate of Dr. Johnston, rather than to defeat the right of the estate thereto. That is to say, the result of excluding this testimony would be to uphold the claim of the defendant as owner of the fee-simple title to all of the land in her own right.
Section 1690, Code 1942, prohibiting a person from testifying as a witness to establish his own claim against the estate of a deceased person, created an exception to the general rule as to the competency of a witness; and being an exception, it must be strictly construed in favor of the competency of the witness. The exception must come within both the letter and spirit of the statute. The previous decisions of this Court are to the effect that the testimony should be in support of a direct claim of the witness against the estate of the deceased person, as distinguished from an indirect or consequential claim against the estate, in order to render it incompetent. Faler v. Jordan, 44 Miss. 283; Love v. Stone, 56 Miss. 449; Fennell v. McGowan, 58 Miss. 261; Combs v. Black, 62 Miss. 831; Cole v. Gardner, 67 Miss. 670, 7 So. 500; Jones v. Warren, 70 Miss. 227, 14 So. 25; Jones v. Bank, 71 Miss. 1023, 16 So. 344; Horne v. Nugent, 74 Miss. 102, 20 So. 159; Cock v. Abernathy, 77 Miss. 872, 28 So. 18; Cockrell v. Cockrell, 83 Miss. 385, 36 So. 390; Garner v. Townes, 134 Miss. 791, 802, 100 So. 20; Davis v. Crawford, 175 Miss. 493, 168 So. 261; Security Mutual Life Ins. Co. v. Brunson, 176 Miss. 893, 170 So. 824; McFarlane v. Plant, 185 Miss. 616, 188 So. 530.
Without reviewing in detail the holdings of the foregoing decisions, it is sufficient to call particular attention to the holding in the cases of Love v. Stone, Fennell v. McGowan, and Garner v. Townes, supra, which declare the rule to be that in order to effect a disqualification of an interested witness, the estate of the decedent must be directly affected by the pending suit.
It is finally contended by the appellee that the suit is not maintainable for the reason (1) that it is an effort to enforce an oral contract for the purchase of land contrary to the Statute of Frauds, sections 264 and 269, Code of 1942; and (2) that the suit is barred by the 10 year statute of limitations, section 709, Code 1942, as an action to recover land.
The answer to the first contention above stated is that the suit is not predicated directly upon the alleged oral contract between the complainants and Dr. Johnston, but is predicated upon the alleged resultng trust under which the appellee, wife of Dr. Johnston, acquired the legal title, and section 269, Code 1942, supra, expressly provides that, "Where any trust shall arise or result, by implication of law, out of a conveyance of land, such trust or confidence shall be of the like force and effect the same as if it would have been if this statute (the Statute of Frauds) had not been passed." And the answer to the second contention is that the right to bring the suit did not accrue under the alleged agreement for the purchase of the land until the complainants had fully paid in 1938 their one-half of the purchase price which they had formerly borrowed from Dr. Johnston, and until the alleged trustee had first failed and refused to execute to the complainants the deed of conveyance in accordance with such alleged agreement.
From the foregoing views it follows that the action of the trial court in overruling the motion for an inspection of the books and records referred to, and in excluding the testimony of the complainants in regard to the alleged agreement between themselves and Dr. Johnston, and in dismissing the bill of complaint on failure to offer further proof, must be reversed.
Reversed and remanded.
Sydney Smith, C.J., did not participate in this decision.