IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01641-COA
IN RE ESTATE OF HARRY J. GREEN, APPELLANT
DECEASED: ELIDE CRISTINA GARRIDO
GREEN
v.
SHIRLEY COOLEY AND WILFORD GREEN APPELLEES
DATE OF JUDGMENT: 04/11/2018
TRIAL JUDGE: HON. C. MICHAEL MALSKI
COURT FROM WHICH APPEALED: LEE COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: MARK NOLAN HALBERT
CYNTHIA TRANELL LEE
ATTORNEY FOR APPELLEES: CHRISTOPHER G. EVANS
NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION: AFFIRMED - 09/10/2019; CORRECTED
09/26/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. Cristina Green appeals the decision of the Lee County Chancery Court to award eight
of her late husband’s properties to his sister, Shirley Cooley. The chancery court found that
Harry Green delivered the December 31, 2003 deeds to Shirley, and that Harry intended that
Shirley own the properties in question. We affirm.
FACTS
¶2. During his lifetime, Harry amassed a large estate consisting of various properties. On
December 31, 2003, Harry had his attorney draft eight deeds that conveyed the following
properties to his sister Shirley:
1. 1201 Nixon Drive, Tupelo, MS
2. The “Main Street Warehouse,” Shannon, MS
3. The Monroe County Land, Nettleton, MS
4. The “Shannon Lot”
5. Temple Circle, Shannon, MS
6. The “White Lane Property,” Nettleton, MS
7. The “Two Houses and Green Valley Lab,” Shannon, MS
8. The Summit1
Shirley was not present when these deeds were signed. In fact, both parties agree that she
was at her home in Texas at that time. Further, there is no indication in the record that she
ever knew the transaction occurred in December 2003. After the deeds were properly
acknowledged before a notary public, Harry took the deeds with him for safe keeping. Harry
did not deliver the deeds to Shirley at that time, nor did he file them in the county clerk’s
1
The Summit property is not considered in this appeal. At trial, Shirley testified that
she signed a deed that transferred the Summit property back to Harry twice. She first signed
a deed on January 15, 2004. Years later, in 2009, however, Harry came back to Shirley and
told her she needed to re-convey the property because he wanted to get a “homestead
exemption,” and build a home for him and Cristina. Because the Summit property was in
Harry’s name at the time of his death, it passed to Cristina and was not at issue at the trial
level. The chancellor, however, took this as a sign of Harry’s intent. Mainly, the chancellor
concluded that if Harry wanted the other properties in his name, he would have asked
Shirley to sign the deeds and record them like he did with the Summit property.
2
office.2
¶3. Later, on January 15, 2004, Shirley was visiting Harry and their mother in Mississippi.
Harry asked Shirley to go with him to his attorney’s office in Houston, Mississippi to sign
some papers. Shirley testified that she signed “everything that was put in front of [her].”
The record indicates that Shirley signed the following warranty deeds on January 15, 2004:
(1) 1201 Nixon Drive; (2) the Main Street Warehouse; (3) the Monroe County Land; (4) the
Shannon Lot; (5) Temple Circle; and (6) the Beauty Shop and House in Monroe County.
Shirley told the chancellor that Harry did not tell her anything about why he wanted her to
sign the deeds, but that she just trusted Harry. The warranty deeds signed on January 15 were
never properly acknowledged or filed. Harry took the deeds with him when he left, and those
deeds were never found.3
¶4. Harry met Cristina in 2003. On January 31, 2004, Harry married Cristina in Las
Vegas. Cristina testified at trial that Harry “never told [her]” that Shirley owned any of his
properties, including the home on Nixon Drive that the newlyweds were living in. Likewise,
Cristina testified that her husband kept his business affairs secret. However, Lisa Diallo, a
deputy clerk for Lee County, testified that Harry told her his properties were in Shirley’s
name because he trusted her and his “wife [was] from across the water,” and he did not want
2
The December 31, 2003 deeds signed by Harry to Shirley were later filed in the Lee
County Chancery Clerk’s office on December 4, 2004, and were delivered to Shirley by
Harry that same month.
3
Copies of the signed, non-acknowledged, unfiled deeds were later found in the
attorney’s office, but the original deeds Harry took with him were never found.
3
her to take the property. The chancellor specifically cited this fact in his opinion.
¶5. On November 26, 2004, Harry conveyed by quitclaim deed the ninth property, the
Plantersville property, to Shirley. Like the deeds signed on December 31, 2003, Shirley was
not present and the deed was properly acknowledged. A few days later, on December 3,
2004, Harry traveled to Texas and delivered all of the December 31, 2003 warranty deeds
and the November 26, 2004 quitclaim deed to Shirley. Shirley testified that she “put the
deeds away,” and that Harry told her that if something happened to him, she would “know
what to do.” The December 31, 2003 deeds were recorded on December 4, 2004, except for
the Monroe County properties (the White Lane property and the Monroe County land).
Shirley actually filed the White Lane property and the Monroe County land warranty deeds
after Harry’s death in 2010.
¶6. Harry continued to pay taxes on the properties, do routine maintenance, and collect
rent. When Harry went to borrow money against the Plantersville property in 2010, however,
he asked Shirley to sign the papers required to do so. Shirley testified that Harry had also
borrowed against the home at 1201 Nixon Drive twice before. These transactions also
required her signature for approval. The chancellor’s opinion noted these facts to support
his factual determination that Harry intended to transfer the properties to his sister instead
of Cristina.
¶7. Harry died on July 6, 2010. In 2007, Harry had updated his will to devise all of his
property to his wife Cristina and his grandchildren. The property listed in the will included
4
the properties Harry deeded to Shirley on December 31, 2003. Because Shirley took control
of the properties after Harry’s death, Cristina filed a complaint for an accounting of the estate
and a declaratory judgment as to the owner of the property at issue. Cristina argued that the
deeds signed on January 15, 2004, were properly accepted by Harry, and the properties were
to pass as dictated by Harry’s will. The estate was never able to find the unacknowledged
original deeds signed on January 15, 2004, and those deeds were never filed in the land
records or the clerk’s office. Copies of the deeds signed that day were retrieved from Harry’s
attorney, but there is no record of Shirley ever signing a deed to convey the “Two Houses and
Green Valley Lab” back to Harry.
¶8. The chancellor found that, after reviewing all of Harry’s actions, he intended for
Shirley to possess the properties. As a result, the court found that Shirley was the rightful
owner of the eight properties in dispute.4 Cristina timely appealed the chancellor’s decision.
STANDARD OF REVIEW
¶9. Our review of the chancellor’s decision is limited. The findings of a chancery court
will not be disturbed “unless [it] abused its discretion, applied an erroneous legal standard,
4
In the chancellor’s original memorandum opinion and judgment filed on November
7, 2017, he found that Shirley was the rightful owner of six properties conveyed on
December 31, 2003 (1201 Nixon Avenue, the White Lane property in Monroe County, the
Main Street Warehouse in Shannon, the Monroe County land, Temple Circle, and the
Shannon Lot). Later, on February 21, 2018, the chancellor entered an order clarifying his
memorandum opinion and judgment. In his clarifying order, the chancellor found that the
Green Valley Lab property belonged to Shirley. Additionally, he found that Shirley owned
the house and 9.5 acres in Plantersville. At the time of this appeal, Shirley was adjudged to
be the rightful owner of all eight properties.
5
or its findings are manifestly wrong or clearly erroneous.” Matter of Estate of Smith v.
Boolos, 204 So. 3d 291, 305 (¶22) (Miss. 2016) (citing In re Estate of Baumgardner, 82 So.
3d 592, 598 (¶15) (Miss. 2012)). Questions of law, and issues of constructive trusts, we
review de novo. Id.
ANALYSIS
¶10. Cristina argues three issues on appeal. Because her first two issues deal with
acceptance and delivery of the deeds signed on January 15, 2004, we consider them as one
issue. First, Cristina claims that the chancellor erred in awarding the six properties to Shirley
because Harry had properly accepted the deeds signed on January 15, 2004. Second, she
argues a constructive trust was created when Shirley took possession of the properties, and
the properties should have been distributed as dictated in Harry’s will.
¶11. The laws of this state concerning the validity of deeds and the transfer of real property
are well settled. For there to be a valid conveyance of real property, there must be delivery
and acceptance of a valid deed. In re Estate of Hardy, 910 So. 2d 1052, 1054 (¶7) (Miss.
2005). Delivery constitutes a “transfer of a deed from the grantor to the grantee or his agent
or to some third person for the grantee’s use, in such manner as to deprive the grantor of the
right to recall it at his option, and with intent to convey title.” Id. at 1054-55 (¶8) (quoting
23 Am. Jur. 2d Deeds §120, at 156 (1983)). Before delivery is complete, “a deed is without
force or effect and is merely a ‘scroll under control of the grantor who is free to withdraw
it, destroy it, or complete its execution by delivery.’” Morrow v. Morrow, 129 So. 3d 142,
6
146 (¶13) (Miss. 2013). The Mississippi Supreme Court has found that a deed that was
signed and acknowledged, but never delivered, was void for lack of delivery. In re Estate
of Hardy, 910 So. 2d at 1055 (¶8) (citing Grubbs v. Everett, 236 Miss. 698, 701, 111 So. 2d
923, 924 (1959)).
¶12. Cristina claims that the chancellor erred in awarding the six properties to Shirley
because Harry had properly accepted the deeds signed on January 15, 2004. She argues that
Harry’s actions leading up to the conveyance on January 15, 2004 showed his intent was
always for the properties to return to him. Harry had the deeds that conveyed the properties
from him to Shirley (signed on December 31, 2003) and the deeds that transferred them back
(signed on January 15, 2004) drafted at the same time. Additionally, the short period of time
between the conveyances, Cristina argues, makes it clear that Shirley was not the intended
owner. The chancellor disagreed, and found that Harry’s actions indicated he wanted Shirley
to own the properties at issue.
¶13. The chancellor factually found, after considering the evidence presented at trial, that
Harry intended the properties in question to be transferred to Shirley and that Harry did not
accept the January 2004 deeds. We are bound to affirm that factual finding unless it was
manifestly in error or clearly erroneous. Here, ample evidence supports the chancellor’s
finding. The chancellor’s decision was based on “Harry’s words, acts[,] and the
circumstances surrounding the transaction.” From that, the chancellor determined Harry “did
not intend to, and thus did not accept, the conveyance” of the properties in January 2004,
7
when Shirley executed the deeds. We agree. Cristina testified at trial that she overheard her
husband discuss that he was renting their home at 1201 Nixon Drive with his secretary:
Q. -- y’all were renting the Nixon home
A. Yeah . . . .
That was during the time that Shirley was the owner of record of the 1201 Nixon Drive
property. Further, testimony proved that Shirley signed for deeds of trust as the owner of the
properties, and Shirley re-signed the deed to the Summit property after she had signed it
previously on January 15. In addition, the chancellor heard testimony that the deeds Harry
ultimately delivered to Shirley were the warranty deeds he signed on December 31, 2003.
The January 15, 2004 deeds were never filed and were, in fact, never found. The chancellor
recognized “one of several possibilities for the disappearance of the deeds is that Harry
destroyed them,” and took that fact to signify that he never accepted the deeds. We agree.
¶14. Further, Harry’s knowledge and actions evidence his non-acceptance of the deeds
signed in January 2004. Harry knew what he was doing. It is hard to comprehend that Harry
would deliver and record the December 2003 deeds in December 2004 if his intended result
was to vest title back to himself because of the January 2004 deeds that were never found.
In fact, it is impossible to imagine that Harry was not aware of each step in these
transactions, when he orchestrated and caused every move. At the time, Harry was acting
as both grantor and grantee over the course of these transactions and had full knowledge of
the actual ownership interest of all parties. The chancellor even noted in his opinion that
8
“despite his experience in matters of real estate and his prior conduct,” Harry chose not to
have the January 2004 deeds notarized, filed, or found. This indicated that Harry’s intent was
for Shirley to remain the owner of the properties and Harry’s non-acceptance of the January
2004 deeds.
¶15. The chancellor’s findings of fact as to Harry’s intent are supported by the evidence.
The law requiring delivery and acceptance before a conveyance is legally effective supports
the chancellor’s conclusions. All of these facts, coupled with the additional testimony and
evidence at trial, support the chancellor’s factual findings and conclusion of law and do not
rise to the level of clear or manifest error. We affirm the chancellor’s finding that Harry did
not accept the deeds in January 2004.
¶16. Cristina’s second issue argues that the properties were held in a constructive trust. “A
constructive trust is a judicially imposed remedy used to prevent unjust enrichment when one
party wrongfully retains title to property.” Presbytery of St. Andrew v. First Presbyterian
Church PCUSA of Starkville, 240 So. 3d 399, 405 (¶27) (Miss. 2018). If Shirley had
wrongfully retained title to the properties, then a constructive trust may be necessary.
However, as the chancellor found in his opinion, Shirley is the rightful owner of all eight of
the properties. This Courts affirms the chancellor’s finding that the deeds signed in
December 2003 and again in January 2004 (1201 Nixon Drive, the “Main Street Warehouse,”
the “Shannon Lot,” “Temple Circle,” the “Monroe County Land,” and the beauty shop,
house, and acreage in Nettleton) were all rightfully Shirley’s. As such, a constructive trust
9
is not proper because Shirley did not “wrongfully retain[] title to [the] propert[ies].” As to
the Green Valley Lab and Plantersville properties, we find the same. Nothing in the record
indicates that a signed deed conveying the Green Valley Lab from Shirley to Harry was ever
found. There was a unsigned copy, but neither Cristina nor Harry’s attorney could produce
a signed copy. Additionally, there is no evidence that a deed was ever found that would have
conveyed the Plantersville property back to Harry. So, again, these two properties would not
require a constructive trust. We find that the chancellor did not err by finding Cristina failed
to prove her claim of a constructive trust.
CONCLUSION
¶17. This Court affirms the chancellor’s finding that Shirley Cooley is the rightful owner
of the following properties:
1. 1201 Nixon Drive, Tupelo, MS
2. The “Main Street Warehouse,” Shannon, MS
3. The Monroe County Land, Nettleton, MS
4. The “Shannon Lot”
5. Temple Circle, Shannon, MS
6. The “White Lane Property,” Nettleton, MS
7. The “Two Houses and Green Valley Lab,” Shannon, MS
8. The Plantersville Property
The record supports the chancellor’s conclusion that Harry’s actions between December 2003
10
and December 2004 show his intent that Shirley remain the owner of these properties. While
this Court cannot speak to Harry’s reasons for masterminding these transfers like a game of
Monopoly, Harry’s actions in this case speak louder than his words. Harry failed to properly
accept the deeds signed by Shirley on January 16, 2004, because he never filed the deeds and
the signed originals were never found after his death, even though the deeds were in his
exclusive control. Accordingly, we find no manifest error in the chancellor’s decision and
affirm the decision that the properties belong to Shirley. Furthermore, because Shirley does
not wrongfully possess title to the properties, a constructive trust as to any of the eight
properties is unnecessary and the chancellor was correct in denying her request.
¶18. AFFIRMED.
BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD,
McCARTY AND C. WILSON, JJ., CONCUR. J. WILSON, P.J., DISSENTS WITH
SEPARATE WRITTEN OPINION, JOINED BY TINDELL, J.
J. WILSON, P.J., DISSENTING:
¶19. This dissent primarily addresses six of the eight properties that are at issue in this
appeal.5 There is no dispute that Shirley signed warranty deeds reconveying those six
properties to Harry. There is also no dispute that Shirley signed those deeds at Harry’s
lawyer’s office at Harry’s specific request. And there is no dispute that Harry took
5
The other two properties—(1) the “Two Houses and Green Valley Lab” in Shannon
and (2) a house and nine and a half acres in Plantersville—raise different issues because
there is no evidence that Shirley signed deeds reconveying them to Harry. I address those
two properties in Part II.
11
possession of the deeds, continued to pay insurance and taxes on the properties for the rest
of his life, and continued to make improvements and repairs and collect rents on the
properties. The chancellor nonetheless found that Harry did not “accept” the deeds to these
properties. I respectfully disagree with the chancellor’s conclusion. I would reverse and
render judgment in favor of Cristina as to these six properties.
I. The January 15, 2004 Warranty Deeds
¶20. With respect to six of the properties at issue in this appeal, there is no dispute (a) that
Harry signed deeds conveying the properties to Shirley on December 31, 2003, and (b) that
Shirley then signed warranty deeds reconveying the properties to Harry on January 15, 2004.
These include four properties in Lee County and two in Monroe County:
1. 1201 Nixon Drive in the Lee Acres subdivision in Tupelo (Lee County)
(Exhibits 1-A and 1-B);
2. the “Main Street Warehouse” in Shannon (Lee County) (Exhibits 2-A
and 2-B);
3. the “Shannon Lot” in Shannon (Lee County) (Exhibits 4-A and 4-B);
4. “Temple Circle” in Shannon (Lee County) (Exhibits 5-A and 5-B);
5. “Monroe County Land” in or around Nettleton (Monroe County)
(Exhibits 3-A and 3-B); and
6. a beauty shop, house, and acreage at 30023 White Lane in Nettleton
(Monroe County) (Exhibits 6-A and 6-B).
Shirley signed the six deeds reconveying the properties to Harry at Harry’s specific request
at the office of Harry’s lawyer, John Fox.
12
¶21. The December 31, 2003 deeds for the four Lee County properties were not recorded
until December 4, 2004. The December 31, 2003 deeds for the two Monroe County
properties were not recorded until after Harry’s death. On July 29, 2010, about three weeks
after Harry died, Shirley recorded those two deeds in Monroe County. The January 15, 2004
deeds reconveying the six properties from Shirley to Harry were never recorded.
¶22. Although the deeds reconveying the properties from Shirley to Harry were neither
acknowledged nor recorded, that does not affect their validity as between Shirley and Harry
or their heirs. Miss. Code Ann. § 89-5-3 (Supp. 2018) (providing that a deed “shall . . . be
valid and binding” “as between the parties and their heirs” even if it is not acknowledged or
recorded); Assocs. Fin. Servs. Co. of Miss. v. Bennett, 611 So. 2d 973, 976 (Miss. 1992);
Cotton v. McConnell, 435 So. 2d 683, 687 (Miss. 1983); Metro. Nat’l Bank v. United States,
901 F.2d 1297, 1302 n.2 (5th Cir. 1990). The chancellor recognized this point in his order
denying summary judgment, and Shirley does not dispute it on appeal. The chancellor
correctly stated that the “one central question remaining in this cause” is “whether Harry
accepted the six deeds on January 15, 2004.”
¶23. “[A]cceptance by the grantee [is] essential to the validity of a deed.” Odom v. Forbes,
500 So. 2d 997, 1001 (Miss. 1987). The grantee’s intent to accept the deed is “manifested
by his words, acts and the circumstances surrounding the transaction.” Id. The chancellor
in this case noted that Mississippi case law addressing the grantee’s intent to accept a deed
is “sparse.”
13
¶24. In Martin v. Adams, 216 Miss. 270, 62 So. 2d 328 (1953), the Court held that the
grantee, Mrs. Adams, did not accept a deed from the grantor, her husband. When Mr. Adams
told his wife that he had executed a deed conveying certain land to her, she “immediately
declined to accept the deed, and remonstrated with him for what he had done.” Id. at 277,
62 So. 2d at 329. She “took the deed to an attorney for his interpretation of it,” but the deed
was then “returned to [Mr. Adams] and remained in his control.” Id. at 277-78, 62 So. 2d
at 329. The Court held that the deed was void due to Mrs. Adams’s express refusal to accept
it. Id.
¶25. The Court also held that deeds were not accepted in In re Estate of Hardy, 910 So. 2d
1052, 1054-55 (¶¶7-10) (Miss. 2005). In that case, Hardy executed deeds conveying property
to her three daughters, but she died before she delivered the deeds. Id. at 1055 (¶9). The
deeds were found in her purse after her death, and “each of [her daughters] testified
unequivocally that she never accepted the deed.” Id. Thus, the problem in Hardy was not
just that the deeds were not “accepted” but that they were not even delivered. Id. at (¶10).
¶26. In Salmon v. Thompson, 391 So. 2d 984 (Miss. 1980), the Court held that a deed was
not accepted because the offeree failed to pay the purchase price for the property. Salmon
orally agreed to buy 55 acres from Thompson for a specified price. Id. at 985. Six months
later, Thompson wrote to Salmon. Id. He enclosed an executed deed and instructed Salmon
to return a copy of the deed with a check for the purchase price if he still wanted to buy the
property. Id. For more than two years thereafter, Salmon did not pay for the property or
14
record the deed, and Thompson finally informed Salmon that he was selling the land to
another party. Id. at 985-86. Salmon then attempted to record the deed and pay for the
property. Id. However, the Court held that Thompson had withdrawn the offer to sell before
Salmon accepted the deed. Id. at 987. The Court held that Thompson’s initial “letter with
instructions . . . constituted a qualified delivery of the deed,” but Salmon failed to accept the
deed when he failed to comply with those instructions for more than two years. Id.
¶27. In each of the foregoing cases, the evidence that the grantee did not accept the deed
was clear. There is no similarly clear evidence of non-acceptance in this case. In fact, there
is ample evidence that Harry did accept the deeds. There is no dispute that Harry asked
Shirley to go to the Fox law office and sign the deeds reconveying the properties to him.
There is also no dispute that Harry took possession of the deeds and left the Fox law office
with them. Harry then continued to pay the taxes and insurance on the properties, continued
to make repairs and improvements on the properties, and continued to collect rent on the
properties. In addition, more than three years later, Harry had a new will prepared in which
he specifically devised at least some of the properties at issue. He specifically devised the
“White Lane” property in Nettleton to his grandchildren, and he devised “[t]he Green real
estate apartments and houses” to Cristina.6 In a residual clause, Harry devised all of his
6
The precise nature of all six of the properties is not clear from the record; however,
at least some of them are rental properties that appear to fall within this devise. Shirley
acknowledged at trial that she changed the locks on the properties and began collecting rent
on the properties after Harry’s death.
15
remaining real property to Cristina. Harry also borrowed money against the Nixon Drive
property and used the funds to build a new marital home on another of his properties. In
short, with respect to these six properties, Harry exercised the ordinary rights and fulfilled
the ordinary obligations of property ownership. As the chancellor put it, “Harry’s day-to-day
behavior with regard to the property was consistent with ownership.”
¶28. The evidence that Shirley cites does not demonstrate a lack of acceptance. Shirley
emphasizes that Harry never had the deeds notarized and filed. However, as discussed
above, that does not render the deeds invalid as between the parties or their heirs.7 Shirley
also notes that Harry asked her to sign deeds of trust for the Nixon Drive property. However,
it is hardly surprising that the bank wanted Shirley—the record owner of the property—to
sign the deed of trust. Shirley next points out that Harry frequently reviewed the properties
under her name at the Lee County chancery clerk’s office. However, that simply shows that
Harry knew that the Lee County land records showed that Shirley was the owner of record,
which is not in dispute.
¶29. Shirley also relies on Cristina’s inability to produce the original signed deeds that
Harry took with him from the Fox law office. Shirley speculates that Harry may have lost
7
Moreover, as noted above, with respect to the two Monroe County properties,
neither the December 31, 2003 deeds from Harry to Shirley nor the January 15, 2004 deeds
from Shirley to Harry were recorded prior to Harry’s death. It was only after Harry died that
Shirley recorded her deeds. It is unclear why Shirley’s unilateral action after Harry’s death
should make those deeds more valid than the deeds that Shirley signed to reconvey the same
properties to Harry.
16
or destroyed the originals. However, even if that is what happened, the subsequent loss or
destruction of the originals would not render Harry’s acceptance of the deeds invalid. See
Wood v. Johnson, 234 Miss. 874, 880, 108 So. 2d 202, 204 (1959) (“The rule has generally
been adhered to in this jurisdiction that where a deed has once been signed and delivered, a
subsequent surrender and destruction of it does not divest the grantee of title to the land.”);
Lisloff v. Hart, 25 Miss. 245, 250 (1852) (“The deed made to the son by Hanah vested the
title to the land in him, and the subsequent destruction of it did not divest it. The second
deed, made by Hanah to Charles Lisloff, Sen., is inoperative, and cannot defeat the right of
the son to the premises.”). The relevant issue is whether Harry accepted the deeds when they
were executed and delivered to him in January 2004—not what he may have done with them
sometime later.
¶30. Shirley also cites vague testimony of her brother, Wilford Green, that Harry and
Cristina wrote a number of “rent” checks to Larry Williams for “around $500” while the
couple resided on Nixon Drive. Wilford said that Williams was a “friend” of theirs. Shirley
suggests that Harry would not have paid “rent” to a “third party” if he really owned the Nixon
Drive property. The suggestion makes no sense. To begin with, Wilford had little
knowledge of the checks and did not clearly testify that they were rental payments for the
Nixon Drive home. Beyond that, there is no evidence that Larry Williams owned the
property or that he was collecting rent on behalf Shirley. It is Shirley’s position in this
litigation that she owned the Nixon Drive property at that time. Yet Shirley fails to explain
17
why Harry would have been paying rent to Larry Williams or how that would tend to prove
that she owned the property. Is Shirley suggesting that Harry mistakenly believed that his
friend Larry Williams owned the property? And, if so, what would that prove?8
¶31. Finally, the chancellor found it significant that Harry had Shirley execute two deeds
reconveying the marital home in “The Summit” subdivision in Tupelo. The Summit property
is not at issue in this appeal because Shirley does not dispute that Cristina is its rightful
owner. Like the six properties discussed above, Harry signed a deed conveying the Summit
property to Shirley on December 31, 2003, and Shirley then signed a deed conveying the
property back to Harry on January 15, 2004, although the latter deed was never recorded. In
2009, Harry asked Shirley to execute a second deed conveying the Summit property to him
so that he could file for a homestead exemption on the property. Shirley complied, and that
deed was both acknowledged and recorded. The chancellor suggested that the 2009 deed
“may have been unnecessary if Harry had truly accepted the 2004 conveyance.” However,
the much simpler explanation for Harry’s request for a second deed is just what he told
8
The majority opinion quotes a snippet of Cristina’s testimony to make it appear that
Cristina admitted that she and her husband were renting the Nixon Drive home. Ante at ¶13.
Cristina, who is from Venezuela, apologized during her testimony that her “English is so
bad.” She also testified that she and Harry did not pay rent for the property and that they did
not have a landlord. All that she clearly articulated was that she once overheard Harry make
some unspecified comment to his secretary about renting the property. Furthermore, the
majority also fails to explain why Harry or Cristina would have been paying rent to Larry
Williams if, as the majority contends, Shirley owned the property.
18
Shirley: he needed an acknowledged, recorded deed to file for his homestead exemption.9
Harry’s request regarding the Summit property should not be interpreted as evidence of what
he did or did not believe about the six other properties.
¶32. In summary, the chancellor was entirely correct in finding that “Harry’s day-to-day
behavior with regard to the property was consistent with ownership.” Harry asked Shirley
to sign deeds reconveying the properties to him, and he took possession of those deeds. He
also paid the taxes and insurance on the properties, he made improvements and repairs, he
collected rent, and he even devised the properties in his will. The various other pieces of
evidence cited by Shirley do not prove a lack of acceptance. Because Harry accepted the
deeds, I would reverse and render judgment in favor of Cristina.
II. Constructive Trust
¶33. Cristina’s complaint sought a constructive trust as to all eight properties that are in
dispute in this appeal. As to the six properties discussed above in Part I, Cristina makes an
in-the-alternative argument that, “[t]o the extent there is any question concerning [Harry’s]
acceptance of the six signed deeds, [the] evidence is sufficient to establish a constructive
trust as to the properties.” Cristina also argues that a constructive trust should be imposed
9
See Miss. Code Ann. § 27-33-17(f) (Rev. 2017) (“If title is held by deed . . . , such
instrument shall be dated and acknowledged on or before January 1 of the year for which
homestead exemption is applied and shall be filed for record with the chancery clerk on or
before January 7 of the year for which homestead exemption is applied . . . .”); Miss. Code
Ann. § 89-3-1 (Supp. 2018) (“Unless [a deed] is [properly] acknowledged . . . , the
[chancery clerk] may refuse to [record the deed].”).
19
on two additional properties: (1) the “Two Houses and Green Valley Lab” in Shannon and
(2) a house and nine and a half acres in Plantersville. There are no deeds to show that Shirley
ever conveyed these properties back to Harry; however, Cristina argues that Shirley held the
properties “solely for the benefit of Harry.”
¶34. A constructive trust is an equitable claim against a party who holds legal title to a
property. Joel v. Joel, 43 So. 3d 424, 431 (¶23) (Miss. 2010); McNeil v. Hester, 753 So. 2d
1057, 1064 (¶24) (Miss. 2000). Therefore, the majority’s determination that Shirley has title
to the six properties discussed above in Part I does not defeat Cristina’s claim for a
constructive trust. Nor is Cristina’s lack of deeds for the other two properties dispositive
with respect to those two properties.
¶35. I would not address Cristina’s claim for a constructive trust as to the six properties
discussed above in Part I only because I would hold that the January 15, 2004 warranty deeds
from Shirley to Harry were valid and effectively conveyed title to the properties. Therefore,
a constructive trust should be unnecessary as to those properties.
¶36. As to the remaining two properties—the Two Houses and Green Valley Lab and the
Plantersville property—I would affirm the chancellor’s denial of a constructive trust.10
Unlike the six properties discussed above, there is no evidence that Shirley signed a warranty
deed conveying either of those properties back to Harry. Although there is some evidence
10
The Supreme Court’s decision in Joel, 43 So. 3d at 430-31 (¶¶22-24), summarizes
the basics of the law on constructive trusts.
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to support Cristina’s claim that Shirley held the properties solely for Harry’s benefit, the
evidence is also open to other interpretations. I cannot say that the chancellor clearly erred
by finding that Cristina failed to meet her burden of proving this claim by clear and
convincing evidence.
CONCLUSION
¶37. I would affirm the denial of Cristina’s claim for a constructive trust with respect to
the Two Houses and Green Valley Lab and the Plantersville property. However, with respect
to the six properties discussed in Part I, I would hold that the evidence is open to only one
interpretation: Harry accepted the signed warranty deeds reconveying the properties to him.
Therefore, those deeds were valid and effective, and I would reverse and render as to those
six properties. I respectfully dissent.
TINDELL, J., JOINS THIS OPINION.
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