Brown v. Long Bell Co.

^* Headnotes 1. Estates, 21 C.J., Section 236; 2. Adverse Possession, 2 C.J., Section 195; Limitation of Actions, 25 Cyc., 3. Deeds, 18 C.J., Section 119; 4. Deeds, 18 C.J., Section 497; 5. Deeds, 18 C.J., Section 548.

(4, 5.) For authorities discussing the question as to whether delivery of deed to third person or for record by grantor, is a delivery to the grantee, see notes in 54 L.R.A. 865; 9 L.R.A. (N.S.) 224, 38 L.R.A. (N.S.) 944. 8 R.C.L. pp. 1004, 1005; 2 R.C.L. Supp. 704; 4 R.C.L. Supp. 586; 5 R.C.L. Supp. 491. The suit was filed in equity by the appellants to cancel the claim of title of the Long Bell Company, appellees, to certain lands named in the bill, to-wit, twenty-six acres off the east side of northwest quarter of southwest quarter, and twelve acres in west side of northeast quarter of southwest quarter, section 1, Township 2, Range 15, situated in Clarke county, state of Mississippi.

The appellants claim title as devisees in remainder under the will of J.H. Johnson, deceased, while the appellees essert title through purchase at a partition sale decreed in April, 1898, and by adverse possession; the purchaser at the sale having conveyed to successors in title, who conveyed to the appellees Long Bell Company, who have possessed and claimed adversely for twenty-two years before the filing of this suit. Upon a final hearing on the merits the court denied the relief sought by complainants, and dismissed the bill from which decree this appeal is taken.

The facts, briefly stated, necessary to an understanding of the decision, are as follows: In October, 1885, J.H. Johnson, the owner of the lands in controversy, died, and left a will which was duly probated. By his will he devised the land to his daughter, Mrs. Molly Brown, "until her death and at her death to go to her children." The land in controversy was a part of his place of residence, and the complainants herein are the children of Mrs. Molly Brown, and the heirs of such other children as are dead.

Mrs. Molly Brown was the daughter of J.H. Johnson, deceased, and the wife of A.D. Brown. In 1898, Mr. and Mrs. Brown were the parents of the seven children, appellants herein, and the youngest one at that time was eight years of age. On April 11, 1898, Mrs. Molly Brown deeded her life estate in the land to her children, the appellants, which deed was duly recorded on April 16, 1898.

The minutes of the chancery court of Clarke county, Miss., dated April 18, 1898, shows a decree, No. 790, Ex parte AnnieLaurie Brown et al. (the minors therein suing by their next friend and father, A.D. Brown), as petitioners in the partition of the land in question, and ordering a sale thereof, and the distribution of the proceeds according to the respective interests of the petitioners therein, who are the appellants in the case befor us.

The minutes of the court further show that the partition decree of sale was carried out after due notice, and that Mr. G.L. Donald, who had been appointed a commissioner in the decree to sell the lands, sold them to one Mr. Terrell for the sum of three hundred and twenty-nine dollars and fifty-one cents, which amount was paid by the purchaser to Commissioner Donald, who in turn distributed forty-two dollars each to the adult children, and paid the balance of two hundred ten dollars and ten cents to Alfred D. Brown, father of the minors, appellants, as the distributive shares of Fanny, Jack, Alfred, Octavia, and Joe Brown of the money received for the lands partited and sold by the commissioner.

The then two adult children, appellants herein, Annie Laurie Brown and Molly J. Brown, received their respective shares of forty-two dollars each, from the commissioner, and their receipts are shown in this record as well as the receipt of the father, Alfred D. Brown, who received the two hundred ten dollars and ten cents, to be distributed to his then five minor children as their share in the proceeds of the sale of the land.

It appears that at the trial hereof an old jacket or an old folder numbered 790, and styled "Ex parte Molly Brown et al.," had been found amongst the scattered court papers, and this jacket contained a petition styled Ex parte Mrs. Molly Brown,Annie Laurie Brown, Molly Brown, Fanny Brown, adults, and Jack,Alfred, Octavia and Joe Brown, minors, who sue by their next friend and mother, Mrs. Molly Brown, for a partition of the lands here involved and asking that they be sold in the interest of the petitioners. This petition sets up the will of J.H. Johnson, deceased, and states that under the terms of the will "the petitioner Mrs. Molly Brown inherited a life estate in said land with remainder to your petitioners, Annie Laurie Brown, Molly Brown, Fanny Brown, adults, and Jack, Alfred, Octavia and Joe Brown, minors, in fee." It also appears that the general docket at one place showed a proceeding styled Ex parte Molly Brown etal., No. 790.

However, the record discloses that while the chancery docket, in 1897, showed a petition styled Ex parte Mrs. Molly Brown etal. and numbered 790, the issue docket for that court showed that the case which was set down for hearing was styled "Exparte Annie Laurie Brown et al.," and that the cause was set down for hearing at the April term, 1898, and also was thus set down on the report of the commissioner at the April term, 1899.

The Annie Laurie Brown petition mentioned in the decree, which may have been an amended petition filed to take the place of the Mrs. Molly Brown petition, was not in evidence at the trial, and there is no proof to show its existence unless it be presumed that the Annie Laurie Brown decree partiting the land followed a petition for that purpose filed some time prior to the granting of the only decree which appears to have been granted in the case.

Alfred D. Brown, the husband of Mrs. Molly Brown, and the father of the children, appellants herein, died in 1914, and his wife, Mrs. Molly Brown, the mother of the appellants, died in 1918. The original bill in this cause was filed by the appellants on August 29, 1921. At the time of the filing of the bill herein, the youngest of the Brown children, appellants, was more than thirty-one years of age, and more than twenty-two years had elapsed since the partition suit and the recording of the deed from Mrs. Molly Brown to appellants, her children.

It was also conclusively established in the lower court that the appellees, Long Bell Company, and their predecessors in title had been in the open, actual, hostile, continuous, and adverse possession of the land for more than twenty-two years under the claim of absolute ownership.

It is also shown that the proceeds from the partition sale of the land were distributed to the appellants, that is, paid to the adults directly, and to the minors through their father, guardian, and next friend. Receipts for the respective payments were executed to the commissioner, Mr. Donald, at the time the proceeds were paid over. There was no offer by the bill or in court to return the money thus paid to the appellants; they in fact denied having received the money until the receipts were produced at the trial.

The suit is an attack on the title of appellees, and the main contentions of the appellants are, first, the partition decree is void on its face for want of jurisdiction, in that the "Molly Brown petition" shows an attempt to partite land in which some of the petitioners owned a remainder interest and the other, the mother, Mrs. Brown, owned a life estate, and that partition would not lie under this state of facts, and that the court was without authority because of statutory provisions contrary to partiting lands with these diverse titles in the petitioners. Second, that the deed from the mother, Mrs. Brown, to her children, conveying her life estate to them, was not a merger of the two estates, but was a void conveyance, because the deed was never accepted by the children, and that the deed was made for the fraudulent purpose of merging the estate so that partition would lie; and that the appellants did not receive any of the proceeds from the partition sale, and none was invested for their benefit.

And it is true the record shows that the appellants testified they knew nothing of the will of Mr. Johnson, nor of the partition sale or the deed from their mother to them, and that they did not accept the deed, nor receive any of the benefits from the partition sale.

The appellees defend their title to the land upon several grounds, which we shall here enumerate as follows: First, the partition suit was regular and valid; second, that even if irregular it was not subject to collateral attack; third, that the receipt of the purchase money conclusively estops appellant; fourth, that all are barred by the two-year statute of limitation with respect to bills of review; fifth, that they are all barred by the ten-year statute of limitation; sixth, that appellees have acquired title by adverse possession.

We find it unnecessary to decide some of the points presented by the appellees, although we may say in passing that several of them may be pregnant with merit.

We think the decree of the lower court in denying the relief sought by appellants was correct, upon the ground that the appellees acquired title to the land by adverse possession for more than ten years after the youngest appellant became of age.

The reasoning which directs us to this conclusion is that when the mother, Mrs. Brown, conveyed to her children, appellants, her life estate in the land, there was a merger, and the whole estate vested in the remaindermen against whom the statute of limitation as to adverse possession began to run at the time the appellees and their predecessors in title took possession, and commenced to claim and occupy the land; and each of the appellants lost title by ten years' adverse possession after reaching the age of twenty-one years.

The youngest one of the appellants herein was more than thirty-one years of age before the instant suit was filed, and the appellees herein had held the land adversely and continuously for more than twenty years before this suit was brought. Therefore the rights of the appellants are barred.

But counsel for the appellants contend the deed from Mrs. Molly Brown to the children was not a valid conveyance, because it was not accepted by the grantees, nor was it intended by the parties to be a merger of the two estates, and that, finally, the deed was fraudulent in that it was given for the purpose of permitting the land to the partited under the law so the proceeds might be used for other objects than that of benefiting the children.

But we disagree with the position of counsel in this regard. The deed by the mother to her children was not an unnatural or unusual thing to do under the circumstances in this case. And this is true, even though the deed was made by her so that the land might be partited, and the proceeds received and used for the benefit of the family, who were harmonious and devoted to each other until the death of the mother in 1918. We see no wrong in the transaction. At that time the price received for the land was fair and reasonable, and it appears from the record that the property was deteriorating in value, and that a sale would be for the best interest of the owners. There was no fraud perpetrated upon the children by the parents.

The fact that the appellants testified they did not accept the deed and knew nothing about the transaction until after the death of their mother did not conclusively invalidate the deed, because when property is conveyed to a minor, as a gift, as here, and the deed is duly recorded, the law accepts for the minor the title conveyed, and delivery may be presumed under the circumstances of the case before us. The conduct of the parties, in dealing with the land and accepting the proceeds of the sale, inferentially tends to show that they accepted the deed from the mother. The minor often is too young to speak or act. So it is not necessary in every case that the grantees actually receive the deed.

When a deed is put upon record delivery is presumed. Neblett v. Neblett, 70 Miss. 572, 12 So. 598; 8 R.C.L., p. 1004. Therefore, when the title went out of the life tenant into the remaindermen, the latter were the complete owners, and the right of the remaindermen to sell or partition the land became absolute, as they became the fee-simple owners, and being the complete owners the statute of limitation, as to adverse possession, began to run against them, and they were barred when they permitted the statute to run for ten years after they became of age.

Counsel for appellants, to put it in another way, contend the legal presumption that the appellants accepted the deed from their mother is overcome by the testimony of appellants that they did not accept it.

We think that notwithstanding the appellants testified that they did not accept the deed, yet the chancellor, as the trier of fact, may not have believed them. Their conduct with reference to the property as shown by this record, and the circumstances and the reasonable inferences to be drawn therefrom, together with the presumption that the deed was accepted at the time it was recorded, were sufficient proof to sustain the finding of the chancellor on the facts as to whether the deed was accepted by appellants; and we assume, as this appellate court should, that the lower court passed upon the question of the acceptance and validity of the deed, and decided the case upon the theory that the deed from Mrs. Brown to her children, appellants, was valid and vested the fee-simple estate in appellants in April, 1898, and that appellants, except for the partition sale, have been complete owners of the land since that time. This being true, it follows that the chancellor was right in holding the appellants were barred by ten years' adverse possession by appellees after all appellants had reached the age of twenty-one years. Metcalfe v. Brandon, 60 Miss. 685; Harkreader v.Clayton, 56 Miss. 383, 31 Am. Rep. 369; Cocks v. Simmons,57 Miss. 183; 18 C.J. 206, par. 107; 18 C.J. 213, par. 119.

A decision of the case upon the ground of adverse possession makes it unnecessary to discuss any other question presented on the appeal, and we shall not, except to say that the "Annie Laurie Brown decree," which partites the land by sale and distribution of the proceeds, is presumed, as a general rule, to have followed a petition for that purpose; but regardless of whether the "Molly Brown petition" was the only petition filed in the partition proceedings, we think that without any partition decree whatever in this case, the deed from the mother, Mrs. Brown, to her children vested the complete ownership in the children, the appellants, and when they permitted it to be held adversely for more than ten years after the youngest child became twenty-one years of age they lost all claim of title to the land.

We have not overlooked the authorities cited in the briefs of counsel on either side, especially Martin v. Gilleylen,70 Miss. 324, 12 So. 254; Gilleylen v. Martin, 73 Miss. 695, 19 So. 482; and Adams v. Belt (Miss.), 100 So. 191.

The decree of the lower court is affirmed.

Affirmed.