OF JUDGMENT: 01/11/2013
COUNTY CHANCERY COURT, HON. MICHAEL H. WARD.
COURT ATTORNEYS: RICHARD MANNING LINGLE SEAN ALBERT SOUTHERN
MICHAEL VINCENT BERNIER MICHAEL ALAN JEDYNAK THOMAS D. LEE.
ATTORNEY FOR APPELLANT: THOMAS D. LEE.
ATTORNEY FOR APPELLEES: RICHARD MANNING LINGLE.
RANDOLPH, P.J., KITCHENS AND CHAMBERLIN, JJ.
RANDOLPH, PRESIDING JUSTICE.
In 1973, Gilbert Lum conveyed a forty-acre tract of land by
warranty deed to his daughter, Lucille Crotwell, reserving
unto himself a life estate in the lands and all mineral
interests owned by him. The deed recites receipt of good and
valuable consideration and was filed of record. No words of
inheritance were contained in the deed. A quarter of a
century later, Lum attempted to reconvey one acre of the same
forty-acre tract to Richard Prestage. This interlocutory
appeal involves an action by Crotwell's
heirs against Prestage's successors in
title. The chancellor found that Lum had reserved a life
estate in the land and minerals only and that he could have
conveyed his reserved life estate, but that reading the
conveyance as retaining the right to reconvey title in fee
simple was repugnant to the granting clause in the conveyance
to Crotwell. The Chancery Court of Scott County granted
summary judgment to the Crotwells on this issue only. T&W
Homes filed this interlocutory appeal.
AND PROCEDURAL HISTORY
The facts are not in dispute. On March 13, 1973, Gilbert Lum
conveyed, by warranty deed, a forty-acre tract of land to his
daughter, Lucille Crotwell. The deed reads:
In consideration of ($10.00) ten and no/100 dollars and other
good and valuable consideration, of which is hereby
acknowledged, I, Gilbert Lum [address] convey and warrant to
Lucille Lum Crotwell [address] the land described as follows
. . . . towitt [sic]: the west half
of S 1/2 of SE 1/4 of Section 19, Township 7 North, Range 6
East. Containing 40 acres more or less.
All above des[cribed] land subject to all prior oil, gas, and
mineral rights, and sales and leases as shown in records of
Chancery Clerk's Office in Forest, Miss.
Grantor, however, does hereby expressly RESERVE unto himself
a life estate in the foregoing lands coupled with a full and
absolute disposition to be exercised by him as though he were
the fee simple owner thereof also RESERVING unto himself
all mineral interest owned by him in said lands for his
deed was signed by Lum, who personally appeared before a
notary public and "acknowledged that he signed and
delivered the foregoing instrument on the day and year
On June 8, 1998, Lum executed a warranty deed for one acre of
the forty-acre tract to Richard Prestage, subject to his life
estate for the mineral interests of that one acre, in
addition to excepting all prior mineral rights. By special
warranty deed, Prestage subsequently deeded the same property
from himself to himself and his wife, Sheri, as an estate by
the entirety with full rights of survivorship. The Prestages
then executed a deed of trust in favor of American Title
Company, Inc., as trustee for Hurricane Mortgage Company,
Inc. This deed of trust ultimately was assigned to HSBC Bank,
USA, N.A., as trustee for Wells Fargo Asset Securities
Corporation Home Equity-Backed Certificates. On August 10,
2011, Emily Courteau, as Substituted Trustee, conducted a
foreclosure sale of this deed of trust. T&W Homes, Etc,
LLC ("T&W") was the successful bidder and
received a Substitute Trustee's Deed.
On December 13, 2011, the Crotwells filed a complaint to
confirm title, remove cloud on the title, and for ejectment.
The parties filed competing motions for summary judgment. The
chancellor found that Lum had reserved a life estate only,
and that a reservation of the right to reconvey fee simple
title was "an illegal and void restraint upon alienation
and repugnant to the granting clause of the deed."
T&W filed an interlocutory appeal as to this one issue.
The parties present the issue on appeal as whether the
reservation by Lum of a life estate "coupled with a full
and absolute disposition to be exercised by him as though he
were the fee simple owner" was an illegal and void
restraint upon alienation and repugnant to the granting
clause of the deed.
Questions of law are reviewed de novo. Morrow v.
Morrow, 129 So.3d 142, 146 (Miss. 2013).
T&W argues that deeds containing reservations of life
estates with power to reconvey fee simple title are
recognized in other states. Each case cited by T&W is not
only foreign to Mississippi law, but is factually
distinguishable. For instance, in Jamieson v.
Jamieson, 912 S.W.2d 602, 604 (Mo.Ct.App. 1995), a
widower reserved a life estate with power to "sell,
rent, lease, mortgage, or otherwise dispose of said property,
during his natural lifetime. Then the remainder in fee
to" his children. After executing the deed, the widower
remarried and executed a new deed conveying the property to
his new wife. Id. In the widower's initial deed,
there was no present conveyance; there was no mention of
consideration; and the conveyance specified that the children
were remaindermen. The Missouri Court of Appeals upheld the
second conveyance, finding that the first deed was a mere
"gift to the remaindermen, " and thus the widower
retained a right to revoke. Id. at 605. In contrast,
the deed at issue in the case sub judice effected a
then-present conveyance by general warranty
of real property owned by Lum. After acknowledging receipt of
valuable consideration-thus taking this case outside the
realm of inter vivos and testamentary gifts-Lum
"[c]onvey[ed] and warrant[ed]" the forty acres
described in the deed to Crotwell. The deed was signed,
delivered, notarized, and filed-putting the world on notice
of the transaction. Crotwell was the grantee identified in
the deed. She was described in the deed as a contingent
remainderman, as posited by the dissent. See Diss.
Op. at ¶ 20. The words "remainder" or
"remainderman" are not in the deed sub judice.
Contra Jamieson, 912 S.W.2d at 604-05.
In Harman v. Hurst, 153 A. 24, 26 (Md. 1931), a
father granted property to his daughter, "her heirs and
assigns, in fee simple, subject and reserving to myself the
right to mortgage or sell." The father then conveyed the
property to his attorney, and his attorney reconveyed the
property to the father. Id. at 25. The Maryland
Court of Appeals upheld the latter conveyances, in part
because the deed did not evidence that the daughter had paid
any consideration for the initial conveyance. Id. at
25-26 ("A slight consideration may support an agreement
made by a parent with a child; but the consideration,
however slight, must be performed."). The Lum-Crotwell
deed reads that consideration was exchanged. On his oath, Lum
acknowledged receipt of consideration in the notarized deed,
rendering Harmon inapposite and unpersuasive.
Finally, T&W asks this Court to consider Kyle v.
Wood, 86 So.2d 881 (Miss. 1956). While Kyle
remains good law for the principles of wills and testaments,
it offers no guidance to today's case.
In Kyle, J.A. Wood's 1948 will contained the
I will and give all my property of every kind wherever
located to my beloved wife, Mrs. Molly Wood, to have [and] to
hold during her lifetime to use, sell and dispose of as she
sees fit; and at her death, then such property left to my
said wife by me is to be given to my nephew, by marriage,
Id. at 882. J.A. Wood died in 1952. Id.
Later that year, Molly conveyed the property to
another. After her death,  nephew Kyle filed suit
against her grantees, complaining that the grant of power in
J.A. Wood's will to dispose was invalid. Id. at
882-83. This Court found Molly's conveyance valid:
It thus appears that the rule is well settled by our own
decisions, that where a testator gives an estate for life
only, with the added power to the life tenant to convey the
estate absolutely, the life tenant may defeat the estate of
the remainderman under the ...