Carter v. Myers

Mississippi Supreme Court

Carter v. Myers

95 So. 252, 132 Miss. 698, 1923 Miss. LEXIS 6

CourtMississippi Supreme Court

DecidedFebruary 26, 1923

DocketNo. 23014

StatusPublished

This text of 95 So. 252 (Carter v. Myers) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carter v. Myers, 95 So. 252, 132 Miss. 698, 1923 Miss. LEXIS 6 (Mich. 1923).

Pincite

Opinion

Smith, C. J.,

delivered the opinion of the court.

The appellant seeks by an original bill to- quiet his title to certain land described therein, and to cancel a. claim of the appellees thereto. The cause was tried on bill, answer, and proof, and the bill was dismissed. The land in controversy was formerly owned by B. F. K. Norwood, now deceased, and the appellant claims by mesne conveyances from him, and the appellees are Norwood’s heirs at law. In 1897 Norwood owned and occupied as a homestead one hundred and sixty acres of land adjoining land [703]*703then owned by either W. T. Breeland or his wife, M. E. Breeland. Norwood and the Breelands agreed to exchange portions of their lands, and executed and delivered each to the other written instruments prepared by a justice of the peace now deceased in consummation of this agreement, the land which the Breelands were to receive from Norwood being that here in controversy. Norwood continued to reside on the remainder of his original homestead for a short time, and then removed therefrom, and neither he nor his heirs have since asserted any right in the land here in question. Norwood lived twelve or thirteen years after his alleged conveyance of the land to the Breelands. In May, 1898, the Breelands conveyed the land to Kennedy, through whom ‘ the appellant claims. The land is covered with timber, and the only acts of ownership thereover exercised by any of the subsequent grantees from the Breelands was an occasional cutting of timber therefrom. When the Breelands sold the land to Kennedy, Norwood went to the land with Breeland and Kennedy, and pointed out to Kennedy the lines thereof. The deed from Norwood to the Breelands was never recorded, and is lost. The instrument delivered by Norwood to the Breelands was seen by a witness some time after its execution, but the only recollection he had of its contents was that it -was written like any other deed, and was from Norwood to the Breelands. ITe could not remember the description of the land therein, but when shown a. diagram of the section of which it is a part he checked off the proper land as being described therein. The witness was also told by Norwood after the execution of his deed to the Breelands that he had sold the land to them. The deed from the Breelands to Kennedy was drawn by the same justice of the peace, who is now dead, who drew the one from Norwood to the Breelands, and the description of the land in the Kennedy deed was taken by him from that in the Norwood deed. The foregoing facts appear [704]*704from the evidence introduced by the complainants, the defendants introducing no evidence at all. !

The only question here presented is the sufficiency of the proof of the contents of the document executed and delivered by Norwood to the Breelands. It is not necessary to prove the contents of a lost document literally, but only substantially. If the document is a deed it is sufficient for it to appear from the evidence that it was executed,. to and by whom, that it contains the necessary words of grant, the consideration therefor, and what property was conveyed thereby. These facts ordinarily must be proven by witnesses who have seen,and read the lost deed, but their existence may be proven in a controversy where the grantor or his heirs are seeking to recover the land by admissions and conduct bf the grantor incon sistent with their nonexistence.

It is clear from the evidence that Norwood intended to execute to the Breelands a fee-simple deed to the land in question, that he thought that the instrument which he executed and delivered to them was such a deed, and that he and his heirs have acted upon that theory for more than twenty years. From which, in the absence of evidence to the contrary, it will be presumed that the instrument that Norwood -executed was so drawn as to be ivhat he intended it should be, to wit, a fee-simple deed to the land which he had agreed to convey to the Breelands. Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703.

Reversed and judgment here for the appellant.

Reversed.

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Smith, C. J.,

delivered the opinion of the court.

The appellant seeks by an original bill to- quiet his title to certain land described therein, and to cancel a. claim of the appellees thereto. The cause was tried on bill, answer, and proof, and the bill was dismissed. The land in controversy was formerly owned by B. F. K. Norwood, now deceased, and the appellant claims by mesne conveyances from him, and the appellees are Norwood’s heirs at law. In 1897 Norwood owned and occupied as a homestead one hundred and sixty acres of land adjoining land [703]*703then owned by either W. T. Breeland or his wife, M. E. Breeland. Norwood and the Breelands agreed to exchange portions of their lands, and executed and delivered each to the other written instruments prepared by a justice of the peace now deceased in consummation of this agreement, the land which the Breelands were to receive from Norwood being that here in controversy. Norwood continued to reside on the remainder of his original homestead for a short time, and then removed therefrom, and neither he nor his heirs have since asserted any right in the land here in question. Norwood lived twelve or thirteen years after his alleged conveyance of the land to the Breelands. In May, 1898, the Breelands conveyed the land to Kennedy, through whom ‘ the appellant claims. The land is covered with timber, and the only acts of ownership thereover exercised by any of the subsequent grantees from the Breelands was an occasional cutting of timber therefrom. When the Breelands sold the land to Kennedy, Norwood went to the land with Breeland and Kennedy, and pointed out to Kennedy the lines thereof. The deed from Norwood to the Breelands was never recorded, and is lost. The instrument delivered by Norwood to the Breelands was seen by a witness some time after its execution, but the only recollection he had of its contents was that it -was written like any other deed, and was from Norwood to the Breelands. ITe could not remember the description of the land therein, but when shown a. diagram of the section of which it is a part he checked off the proper land as being described therein. The witness was also told by Norwood after the execution of his deed to the Breelands that he had sold the land to them. The deed from the Breelands to Kennedy was drawn by the same justice of the peace, who is now dead, who drew the one from Norwood to the Breelands, and the description of the land in the Kennedy deed was taken by him from that in the Norwood deed. The foregoing facts appear [704]*704from the evidence introduced by the complainants, the defendants introducing no evidence at all. !

The only question here presented is the sufficiency of the proof of the contents of the document executed and delivered by Norwood to the Breelands. It is not necessary to prove the contents of a lost document literally, but only substantially. If the document is a deed it is sufficient for it to appear from the evidence that it was executed,. to and by whom, that it contains the necessary words of grant, the consideration therefor, and what property was conveyed thereby. These facts ordinarily must be proven by witnesses who have seen,and read the lost deed, but their existence may be proven in a controversy where the grantor or his heirs are seeking to recover the land by admissions and conduct bf the grantor incon sistent with their nonexistence.

It is clear from the evidence that Norwood intended to execute to the Breelands a fee-simple deed to the land in question, that he thought that the instrument which he executed and delivered to them was such a deed, and that he and his heirs have acted upon that theory for more than twenty years. From which, in the absence of evidence to the contrary, it will be presumed that the instrument that Norwood -executed was so drawn as to be ivhat he intended it should be, to wit, a fee-simple deed to the land which he had agreed to convey to the Breelands. Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703.

Reversed and judgment here for the appellant.

Reversed.

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95 So. 252, 132 Miss. 698, 1923 Miss. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-myers-miss-1923.

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