I cannot agree with the conclusion reached by the Majority. Louise Ballard deeded the property involved to John Wesley Jackson in April, 1957, reserving the right to receive, apply, and use “all rents and profits that may arise from said property during the life of the said Louise1 Ballard.” Jackson, the “godson” of appellant, had apparently lived in one of the houses on the property for several years prior to obtaining the deed, or at least had had charge of the property, since the accounting by him dates back to 1955. He had been corresponding since 1954 with appellant, who had moved out of the state. The testimony reflects that on April 26, 1956, appellant gave her power of attorney to appellee authorizing him to borrow and to expend-“not in excess” of $350 for the purpose of making repairs, and to mortgage the property for that purpose. This power of attorney had been sent by Jackson to Louise Ballard for execution. However, he did not use it, but borrowed money himself, stating that the $350 “wouldn’t have started it.”
One house has been rented since June, 1958, for the sum of $28 per month. The other house, at the time of trial, had been rented for twenty-two months at the monthly rental of $12. It is true that appellant authorized Jackson to repair the property, but, in my view, appellee went far beyond the state of “repairing”, and actually improved appellant out of her interest in the property.
Appellant, without any valuable consideration, deeded the property in question to appellee. It will unquestionably become his absolutely upon her death. His investment is accordingly fully protected. Appellant deeded this property to Jackson because of her affection for him — but she certainly had the right to expect that during her lifetime she would receive some of the rents. I agree that appellee is entitled to the sums expended for insurance and taxes, and to an appropriate amount for repairs, but I do not consider it equitable for him to draw the entire rents each month to apply on the amounts expended. In my opinion, he has already received sufficient rental to afford reimbursement for necessary repairs, insurance, and taxes, but if this conclusion is incorrect, a portion of the monthly rental could be sent to appellant and appellee could still (though it would take a little longer time) receive the full amount due. Under the holding of the Majority, it appears to me that Jackson can continue to expend sums for the “improvement” or “repair” of the property, and continue taking all of the rental each month for reimbursement. Under these circumstances, appellant may never receive a nickel during her lifetime, and is receiving no benefit whatever from the property. In other words, under the Majority holding, though Louise Ballard reserved the right to receive the rents, she might as well have deeded the property to Jackson absolutely and in fee simple, for from a practical standpoint, her rights are completely extinguished.
I therefore respectfully dissent.
I am authorized to state that Justice George Rose Smith joins in this dissent.
Apparently appellant’s name is actually Louis a, and she so signed the deed.