Mitchell v. Toole

BRYAN, Circuit Judge (after stating the facts as above). It is contended by the assignments of error that appellee’s wife, Sallie Toole, was not a competent witness; that the judgment rendered in the proceedings before the justice of the peace constitutes res judicata; and that there is not sufficient evidence to sustain the decree. It is of no consequence that the conveyance is in form a warranty deed. Parol evidence was admissible to show that in reality it is a mortgage. Bolin v. Wilkes, 249 Fed. 705, 161 C. C. A. 615. [28] We do not think the court erred in admitting the testimony of Sallie Toole, even assuming that one of the grounds of objection to that testimony was that the property involved was appellee’s homestead. The rule in Mississippi appears to be that the wife has no legal interest in homestead property, the title to which is in the husband, but only a veto power upon the husband’s right of alienation. Massey v. Womble, 69 Miss. 347, 11 South. 188; Scott v. Scott, 73 Miss. 575, 19 South. 589. But if appellee’s wife was not a competent witness, because of interest, prejudicial error is not shown, since testimony to the same effect as hers was given without objection by several other witnesses. The proceedings before the justice of the peace were merely possessory. It is doubtful if the legal title was at all involved. Certainly the equitable title, which.is sought to be established in this case, was not. Wilson v. Peacock, 111 Miss. 116, 71 South. 296. There was abundant evidence to show that it was appellee’s intention merely to secure his indebtedness to Mitchell. While Sallie Toole’s testimony, to the effect that Mitchell executed and delivered to her his written agreement to hold the title in trust for appellee, deserves close scrutiny, yet it appears to be well corroborated by the notary public. Mitchell’s admission, made as late as 1918, that he held the title in trust, strongly corroborates other evidence for appellee. The case depends, not upon the sufficiency 'of the evidence, but upon the credibility of the witnesses. Much support of the direct evidence for appellee is found in the circumstances that a substantial house was built upon the land and paid for by appellee, that much larger amounts than usual were paid in 1918 and 1919, and that, immediately upon being informed that Mitchell claimed title, appellee brought suit to cancel the deed upon which that claim was founded. Weller’s testimony for appellants indicates that Mitchell was unfamiliar with the property, but the District Judge could well have disregarded that testimony. Mitchell had been thoroughly familiar with the property, and had known, its approximate value since 1904. Payment of taxes is not of much importance. It is not unusual for a mortgagee to pay taxes in order to protect his security. Besides, Mitchell was constantly making advances for the raising of crops, for supplies, and for the needs of appellee. The fact that payments were denominated rents in his books of account is entirely consistent with the theory that Mitchell was making evidence for himself after he came into possession of the deed which purported to convey to him the absolute title. The statement, over appellee’s signature written on the back of the note of January 3, 1920, to the effect that the note was given for rent on land owned by Mitchell, manifestly does not constitute an admission by appellee, who could neither read the statement nor sign his name. It would make no difference if it was Mitchell’s intention at the time the deed was executed to secure to himself the fee-simple title, and only to pretend to the grantors that he was merely taking security for the debt due to him. [29] It is fair to assume that the debt to Ranier secured by a deed of trust In 1912 has been paid; but it is not clear from the testimony who paid it. If Mitchell did, it is probable that he would have obtained a satisfaction and recorded it. At any rate, the balance found by the court to be due from appellee to Mitchell is not claimed to be incorrect. Giving due weight to the findings of fact by the District Judge, we are unable to conclude that he committed error in giving credence to the testimony adduced by appellee. The decree is affirmed.