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BRENDA E. CHAPMAN v. JAMES B. CHAPMAN

JULY 24, 1985

BRENDA E. CHAPMAN
v.
JAMES B. CHAPMAN, JR.



BEFORE WALKER, PRATHER AND ANDERSON

PRATHER, JUSTICE, FOR THE COURT:

The subject matter of this opinion involves the issue of equitable estoppel.

Appellee James B. Chapman, Jr. filed suit in the Chancery Court of Hinds County against appellant Brenda E. Chapman seeking to set aside a deed and remove cloud on title to 9 acres of real property. Appellant answered and counter-claimed for partition of the property. The Chancery Court entered judgment in favor of appellee James B. Chapman on the complaint and dismissed the counterclaim of appellant Brenda E. Chapman.

 Brenda Chapman appeals, assigning as error:

 The trial judge committed manifest error in finding that the deed to the appellant constituted a cloud on the appellee's title and should be cancelled and by dismissing appellant's counterclaim for partition of the property.

 I.

 Appellant Brenda E. Chapman is the former wife of appellee James B. Chapman, Jr. The parties were married in July of 1969 and divorced in October of 1982.

 In 1978 Mr. and Mrs. Chapman discussed the purchase of 9 acres of land located approximately 300-400 yards north of their residence. Mrs. Chapman was opposed to the purchase of the property at the time for financial reasons. On March 15, 1978, Mr. Chapman purchased the 9 acres of land, executed a deed of trust to the Bank of Hazlehurst as security for a loan of $8,270.00 in order to finance the purchase. On March 22, 1978, Mr. Chapman executed a warranty deed conveying the newly purchased property to himself and Mrs. Chapman as joint tenants with full rights of survivorship. Mr. Chapman requested a photocopy of the deed and instructed his attorney, Joe G. Moss, to retain the original deed in the office file until he called for it or asked that it be recorded. When presented with the photocopy of the deed, appellee brought up the fact that the notary seal was not visible. His attorney, who also notarized the deed as notary, then imprinted an original notary seal on the photocopy of the deed.

 At this point, the facts become disputed. Appellant Brenda Chapman testified that on March 22, 1978, her husband brought the photocopy of the deed to her at her place of

 employment and said "I hope you are satisfied. One-half of it is now yours." Mrs. Chapman stated that at the time she was not aware that the deed was a photocopy. According to Mrs. Chapman, she kept the deed in her office for approximately a year or a year and a half, then took it home and placed it in a drawer. In September of 1982, after marital problems arose, Mrs. Chapman, acting upon the advice of her attorney, filed the deed for record.

 Appellee James Chapman testified that, upon receiving the photocopy of the deed from his attorney, he took it home and placed it in a drawer. Appellee denied delivering the photo copy of the deed to his wife, contending that Mrs. Chapman surreptitiously obtained the document from the home. Upon learning in May of 1983 that the photocopy of the deed had been recorded by his wife, appellee retrieved the original deed from the office of his attorney and destroyed it.

 It is undisputed that from May, 1979 until the parties separated, the monthly payments for the property were made by check drawn on Mr. and Mrs. Chapman's joint checking account. Both appellee and appellant contributed their monthly pay checks into this checking account. Mr. and Mrs. Chapman thus contributed jointly to 39 of the 48 monthly payments; the remaining 9 payments were made by Mr. Chapman alone following the divorce of the parties.

 II.

 Did the trial court commit manifest error in finding that the deed to the appellant constituted a cloud on the appellee's title and should be cancelled and by dismissing ...


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