Allison v. Burnham

Holden, J.,

delivered the opinion of the court.

This is an appeal from a decree overruling a demurrer to a bill to reform a deed and partite certain lands.

The pertinent charges in the bill, which are admitted to be true by the demurrer, are that the appellee Burn-ham employed one of the appellants, Mr. Miller, an attorney, to file suit for him to recover a tract of four hundred acres of land valued at four thousand dollars, with the agreement that the attorney’s fee for such services should be one thousand dollars, and to secure this fee appellee Burnham executed to Miller an absolute deed to the land, but with the agreement and understanding that the deed was to operate only as a mortgage, and that Miller should sell the land at some future time, at a price to be fixed by Burnham and Miller together;; and it was also understood tliat in the event a sale was not made within a reasonable time, then Miller was to have a one-fourth undivided interest in the land.

No sale was made of the land by Miller during a period of about seven years. Miller then sold the land to Mrs. Allison, appellant, executing to her an absolute deed, but fully advising her that he (Miller) only owned a one-fourth interest in the land and that the intention in the deed was to convey to Mrs. Allison only the one-fourth undivided interest owned by Miller, and that in drafting the deed a mistake was made in conveying all the land instead of the one-fourth interest owned by Mr. Miller, and which was understood by the parties to be the only interest conveyed by him to Mrs. Allison.

This suit was then instituted about eight years after1 the date of the deed from Miller to Mrs. Allison, to correct and reform the deed and to partition the land between appellee Burnham and Mrs. Allison.

The appellants contend the lower court erred in overruling the demurrer to the bill, because the transaction between Burnham and Miller as .charged in the bill amounted to an express trust not in writing and therefore void, and, second, that the claim of Burnham was barred by the statute of limitations.

We think the grounds urged by the appellants are unsound, for the reason that the bill charges the deed from Burnham to Miller was intended as a mortgage, which fact may be shown by parol testimony. Fultz v. Peterson, 78 Miss. 128, 28 So. 829.

And we do not think the ten-year statute of limitation bars the suit of Burnham, because fhe statute did not begin to run against his claim, to the land until Miller executed the deed to Mrs. Allison, at which time Burn-ham’s right of action accrued, and the present suit was started about eight years thereafter, which was within the ten-year period prescribed by the statute of limitation.

Therefore the judgment of the lower court is affirmed, the cause remanded, and the appellants allowed sixty days in which to plead further after the mandate reaches the lower court.

Affirmed and remanded.