Estate of Dykes v. Estate of Williams

864 So. 2d 926, 2003 WL 22861757
CourtMississippi Supreme Court
DecidedDecember 4, 2003
Docket2002-CA-00944-SCT
StatusPublished
Cited by29 cases

This text of 864 So. 2d 926 (Estate of Dykes v. Estate of Williams) 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
Estate of Dykes v. Estate of Williams, 864 So. 2d 926, 2003 WL 22861757 (Mich. 2003).

Opinion

864 So.2d 926 (2003)

The ESTATE OF Johnnie Eloise Hodges DYKES, Deceased: Ginger Dykes Williams, Executrix
v.
The ESTATE OF Michael A. WILLIAMS, Deceased: Kathryn F. Tonguis, Executrix.

No. 2002-CA-00944-SCT.

Supreme Court of Mississippi.

December 4, 2003.

*928 Joan Elizabeth Lund, Gulfport, attorney for appellant.

Gene Horne, Centreville, attorney for appellee.

Before McRAE, P.J., EASLEY and CARLSON, JJ.

McRAE, Presiding Justice, for the Court.

¶ 1. The Estate of Johnnie Eloise Hodges Dykes filed an action in the Chancery Court of Amite County to set aside a deed that Dykes had been executed to her grandson, Michael A. Williams. A trial was held before the chancellor, who refused to set aside the deed and ruled in favor of the defendant, Kathryn F. Tonguis, former wife of the now deceased Michael A. Williams. Dykes's estate appeals the decision of the chancellor and argues that the chancellor erred because (1) the deed was never delivered; (2) the deed was not properly executed, notarized, and acknowledged; (3) no consideration was paid by the grantee; (4) no power of attorney *929 existed to properly convey the land; and (5) an agent acting under power of attorney cannot make a gift when the instrument conferring power of attorney does not authorize such. We affirm.

FACTS

¶ 2. In February of 1982, Johnnie E. Hodges Dykes ("Johnnie") and her husband, Milford L. Dykes, executed a deed to their grandson, Michael A. Williams ("Michael"), conveying to him the family's 80-acre hunting camp near Liberty, Mississippi, while reserving a life estate in the same property for themselves. The deed was filed in the land records of Amite County, Mississippi, that June. Michael, who was 18 at the time of the conveyance, paid nothing in exchange and never even knew of the conveyance. However, the deed did state that the grantor received "ten dollars ($10.00), cash in hand paid, and other good and valuable consideration, the receipt of which is hereby acknowledged."

¶ 3. In October of 1993, Michael and his mother, Ginger Dykes Williams ("Ginger"), executed a quitclaim deed conveying the 80 acres back to Johnnie (Milford had previously died). The deed was filed for record that November and indicated that Michael and Ginger maintained the same address in Pensacola, Florida, while Johnnie maintained residence in Mississippi.

¶ 4. In June of 1995, Ginger executed a quitclaim deed conveying the 80 acres back to Michael.[1] While the deed bore the name Johnnie Hodges Dykes as the grantor, it was signed "Johnnie Hodges Dykes by Ginger D. Williams, Power of Attorney."

¶ 5. The notary public in this instance, Michelle Musselwhite ("Michelle"), typed the following at the end of the acknowledgment: "Ginger D. Williams appeared for Johnnie E. Hodges Dykes by Power of Attorney." The deed was executed in Escambia County, Florida, on June 1, 1995, and was filed in the Amite County land records on June 5, 1995. Ginger continued to pay the taxes on the land until 1999.

¶ 6. Sometime after the June 1, 1995, execution of the deed, Johnnie passed away. On March 18, 1999, Michael married Kathryn (now Kathryn Tonguis, hereinafter "Kathryn"). Roughly four months later, Michael died. Shortly thereafter, Kathryn took over ownership and began paying taxes on the land.

¶ 7. On February 17, 2000, Ginger[2], as executrix of Johnnie's estate ("the Estate"), filed a complaint against the Estate of Michael A. Williams in the Chancery Court of Amite County to cancel the 1995 deed. However, all responsive pleadings were filed by Kathryn. By agreement, Kathryn was later substituted as party defendant and waived any and all procedural errors.

¶ 8. At trial, the Estate sought to have the deed set aside as invalid on the grounds that (1) there was no consideration; (2) the deed was never delivered; (3) Dykes did not have the mental capacity to make a gift at the time of the deed's execution; (4) no valid power of attorney existed at the time of the deed's execution for Ginger to have properly conveyed the land; and (5) the alleged power of attorney was not recorded. On May 13, 2002, the chancellor found for Kathryn on all issues. The Estate subsequently filed its notice of appeal on June 11, 2002, after which, the *930 case was assigned to this Court. While the Estate renews the argument that there was no valid power of attorney to effectuate the deed and the argument that the deed, itself, was invalid, we affirm the decision of the trial court that the land properly belongs to Kathryn.

STANDARD OF REVIEW

¶ 9. This Court will not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous. In re Conservatorship of Bardwell, 849 So.2d 1240, 1245 (Miss. 2003). If there is substantial evidence to support the chancellor's findings of fact, those findings must be affirmed. Id. However, this Court reviews questions of law de novo. Morgan v. West, 812 So.2d 987, 990 (Miss.2002).

DISCUSSION

I. Whether a purported deed is void ab initio when it is not delivered by the Grantor to the Grantee during the lifetime of the Grantor?

¶ 10. For a deed to be valid in Mississippi, the grantor must deliver it to the grantee. Martin v. Adams, 216 Miss. 270, 62 So.2d 328, 329 (1953). To show that the delivery, itself, is valid, there must be (1) "a complete and unequivocal delivery of the deed" and (2) "an actual intent by the grantor to deliver the deed," shown by the words and acts of the grantor and the context of the transaction. Benton v. Harkins, 800 So.2d 1186, 1187 (Miss.Ct. App.2001). However, the recording of a deed creates the rebuttable presumption that it was delivered.[3]In re Estate of Hardy, 805 So.2d 515, 518 (Miss.2002); McMillan v. Gibson, 222 Miss. 408, 76 So.2d 239, 240 (1954).

¶ 11. In Hardy, this Court noted that where grantors retain control and possession of a deed until death, without any indication of any intent to deliver the deed, the deed is void for non-delivery. 805 So.2d at 518. There, a woman was found not to have delivered deeds to her children where the children not only denied ever accepting the deeds, but the deeds were found in the woman's purse at the time of her death. Id.

¶ 12. A somewhat similar situation occurred in Grubbs v. Everett, 236 Miss. 698, 111 So.2d 923, 924 (1959). There, this Court affirmed the ruling of the chancellor, that there was no delivery where the purported deeds in question were found in the trunk of the deceased after his death and there was no evidence of his intention to have the deeds delivered until after his death. Id.

¶ 13. In the case at bar, the record is clear that the deed in question was executed in Pensacola, Florida, on June 1, 1995, and then recorded in Liberty, Mississippi on June 5, 1995. Therefore, the rebuttable presumption has been raised that there was a valid delivery of the deed to the son.

¶ 14. The Estate argues that Ginger's testimony successfully defeated this presumption. Ginger stated "I did not record that deed. I did not. And if I need to take a lie detector test to swear—I don't know how it got recorded. I did not record it." The Estate claims that, since Kathryn failed to present any witness to rebut that testimony, Ginger's testimony was uncontroverted and should have carried the day.

¶ 15. However, the chancellor found that Ginger's testimony, itself, provided *931

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Bluebook (online)
864 So. 2d 926, 2003 WL 22861757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-dykes-v-estate-of-williams-miss-2003.