Graham v. Triplett , 148 Miss. 299 ( 1927 )

^* Corpus Juris-Cyc. References: Wills, 40Cyc, p. 1086, n. 49; p. 1087, n. 51. As to effect on validity and character of instrument in form of deed, of provision there indicating intention to postpone or limit the right of grantee until after death of grantor, see annotation in 11 A.L.R. 23; 28 R.C.L. 62; 4 R.C.L. 1798; 6 R.C.L. Supp. 1703. The appellees, heirs at law of Mary M. Triplett, deceased, filed this suit against the appellants for the purpose of obtaining the cancellation of a claim by the appellants to land claimed by the appellees as a cloud on their title thereto. The bill alleges, in substance, that in February, 1912, Mrs. M.R. Burch, the then owner of the land, executed and delivered to Mary M. Triplett an instrument in writing, alleged to be a deed, which reads as follows:

"Know all men by these presents that for and in consideration of the natural love and affection I have and do bear towards Mary M. Triplett, wife of B.O. Triplett, I hereby grant, bargain, and convey to her and her heirs and assigns forever, to have and to hold after my death the following described property, to-wit, lying and being in said county of Noxubee, and state of Mississippi, being the East one-half of West one-half, less Northwest quarter, Southeast quarter, Southwest quarter, section 35, township 16, Range 15, containing one hundred fifty acres, more or less,"

Mary M. Triplett then lived, and for a number of years thereafter continued to live, with Mrs. Burch on the land described in the instrument. In July, 1925, Mrs. Burch devised the land to the appellants by will, which was probated after her death, under which they claim and are asserting title to the land. A demurrer interposed by the appellants to the bill of complaint was overruled, and they have appealed to this court for the purpose of settling the principles of the case.

The appellants' contention is that the instrument executed and delivered by Mrs. Burch to Mary M. Triplett in February, 1912, is a will, and not a deed, and was therefore revoked by the later will executed by Mrs. Burch. This instrument is a deed in form, contains no provision prohibiting it from taking effect until the grantor's death, but simply postpones the possession and use of the land by the grantee until the death of the grantor; it is therefore a deed in fact and valid, under section 2762, Code of 1906 (Hemingway's Code 1927, section 2421). Wall v. Wall,30 Miss. 91, 64 Am. Dec. 147; Simpson v. McGee, 112 Miss. 344, 73 So. 55, 11 A.L.R. 4; Cox v. Reed, 113 Miss. 488, 74 So. 330, 11 A.L.R. 5; Kelly v. Covington, 119 Miss. 658, 81 So. 485; Stubblefield v. Haywood, 123 Miss. 480, 86 So. 295.

Affirmed and remanded, with leave to the appellants to answer the bill within thirty days after the filing of the mandate in the court below.

Affirmed and remanded.