July 7, 2014 § Leave a comment
The COA’s June 24, 2014, decision in O’Neal v. Ketchum is notable primarily because it deals with an unmarried couple and their joint property issues.
But the case also addresses an issue that arises with some frequency in real property litigation, divorces, and probate matters: when is a mobile home considered to be real property?
In O’Neal, the appellant argued that the chancellor erred in concluding that the mobile home was not a fixture because, the chancellor held, neither party had proved that it was.
The COA affirmed. Judge Lee’s opinion spells it what it takes to establish that a mobile home is a fixture:
¶14. For a mobile home to be considered real property, the specific requirements of Mississippi Code Annotated section 27-53-15 (Rev. 2010) must be met. Under section 27-53-15, first, the mobile home’s wheels and axles must be removed, and the home must be affixed to a permanent foundation by anchoring and blocking it to comply with the rules and procedures of the Commissioner of Insurance of the State of Mississippi. Then, the mobile home must be entered on the land rolls of the county tax assessor, and it must be taxed as real property from that date. Lastly, the county tax assessor must issue a certificate certifying that the mobile home is real property, and the tax assessor must file the certificate in the land records. For a security interest to be perfected, the mobile home’s description must be included in the deed of trust. See Deutsche Bank Nat’l Trust Co. v. Brechtel, 81 So. 3d 277, 279 (¶8) (Miss. Ct. App. 2012).
¶15. At trial, no evidence was presented that the mobile home’s wheels and axles had been removed or that it had been attached to a permanent foundation. Additionally, no evidence was presented that a certification of the mobile home as real property had been entered with the county tax assessor. The deed encompassed the land “together with all improvements and appurtenances now or hereafter erected on [it], and all fixtures of any and every description[,]” but the deed made no mention of the mobile home.
¶16. Neither party asserted that the mobile home had become a fixture on the property. The chancellor determined that because no evidence was presented that the mobile home’s wheels were removed, that the home was attached to a foundation or placed on blocks, or that the home was assessed as real property for tax purposes, the mobile home had not become a fixture. The chancellor’s findings were supported by substantial evidence. This issue is without merit.
June 19, 2013 § Leave a comment
Shelly Kelly wanted to rent a house in Greenville. She approached Harrison Barry, who owned some rental property. Instead of a rental, they struck a deal for Shelly to buy some property for $5,000.
Barry asked Edward Lueckenbach, a Greenville attorney, to prepare the deed, but he was not asked to do a title opinion. The attorney went to the Washington County Courthouse, where he got the legal description for “Lots 51 and 52” in Shelton Subdivision, and he prepared a warranty deed.
Kelly bought her property and moved in at 330 Lake Street.
Barry renovated the neighboring property at 332 Lake Street, converting it from a single-family dwelling into a boarding house. He paid for air-conditioning, painting, and plumbing work. He installed a new water heater, furnace, closet, door locks, and doors, including paying for all the necessary materials. Barry allowed Kelly to screen the tenants, based on a complaint she made about noise, and Kelly collected the rent, which she turned over to Barry.
When Kelly received a tax bill for the 332 property, she called Barry to inquire, and he went to the attorney’s office, who advised him that the Lots 51 and 52 on the deed were for two different dwelling houses, one at 330, and one at 332. The attorney contacted Kelly, who refused to sign a corrective quitclaim deed. Barry filed suit to have the deed reformed to reflect the actual intent of the parties, and the chancellor ruled in Barry’s favor. Kelly appealed.
In Kelly v. Barry, decided May 21, 2013, the COA affirmed. Judge Roberts’ opinion sets out the basis for the ruling:
¶12. “A deed may be reformed where it is shown to [have] result[ed] from the mutual mistake of the parties in contracting for it.” Olive [v. McNeal], 47 So. 3d at 739 (¶12) (citing Brown v. Chapman, 809 So. 2d 772, 774 (¶9) (Miss. Ct. App. 2002)). As stated in Brown:
The law permits reformation of instruments to reflect the true intention of the parties when . . . the erroneous part of the contract is shown to have occurred by a mutual mistake, i.e., the party seeking relief is able to establish to the court’s satisfaction that both parties intended something other than what is reflected in the instrument in question[.]
Brown, 809 So. 2d at 774 (¶9). “The party seeking reformation of a deed on a mistake theory bears the burden of proof beyond a reasonable doubt.” Olive, 47 So. 3d at 739-40 (¶13) (citing McCoy v. McCoy, 611 So. 2d 957, 961 (Miss. 1992)).
¶13. Kelly notes that in Olive, this Court affirmed a chancellor’s decision that a litigant had failed to demonstrate mutual mistake because: (1) the document at issue in Olive was titled as a warranty deed; (2) the grantor was literate; (3) the grantor had several opportunities to review the warranty deed; (4) the grantor had some experience in real-estate transactions; and (4) the grantor had an opportunity to discuss the warranty deed with his attorney. Olive, 47 So. 3d at 740 (¶17). Kelly argues that the circumstances in this case are similar to the circumstances in Olive. We disagree.
¶14. Without question, the document at issue in this case was styled as a warranty deed. However, the property description merely indicated that Kelly was acquiring “Lots 51 & 52.” The property description does not indicate that Barry was selling Kelly 330 Lake Street and 332 Lake Street. In preparing the warranty deed, Lueckenbach could have mistakenly believed that “Lots 51 & 52” both applied to a single street address. Barry testified that he did not read the property description. Even if he had, no portion of the property description would have placed him on notice that he was mistakenly transferring title of two separate street addresses.
¶15. Furthermore, Barry’s behavior after the transaction indicated that he believed he never transferred title to 332 Lake Street. He paid for substantial repairs to 332 Lake Street and converted it to a boarding house. And he continued to pay the utility bills, taxes, and insurance premiums that related to the property.
And Kelly collected the rent for Barry and turned it over to him.
Who among us has not had a similar experience? I know I had a scarily similar experience once in Neshoba County where I would have faced litigation at my expense to correct a misdeeded parcel, but for the intervention of a young attorney with a sense of honor and equity, who prevailed upon his client to agree to fix the screw-up that had been the mutual error of two attorneys who put haste ahead of accuracy in drafting the judgment and deeds necessary to settle an estate.
Cases like this one are at the very core of what chancery courts are for.
January 11, 2012 § 12 Comments
MCA § 91-5-35 allows you to admit a will to probate as a muniment of title only (muniment = evidence or writing that enables one to defend title to an estate or a claim to rights or privileges, according to Webster). It’s an effective procedure where the decdent owned only real property in Mississippi, and especially where the decedent was a resident in another state and owned nothing but realty here.
The statute enables the beneficiaries to dispense with the formalities of probate and have a judgment recorded that preserves the chain of title.
Your client can take advantage of the statute if the decedent died testate owning real property in Mississippi at the time of death, and the will purports to devise the real property.
But you have to do it right. Here’s what the statute requires:
- The petition must be signed and sworn to by all beneficiaries named in the will, and by the spouse if not named in the will.
- The petition must recite that the value of the decedent’s personal estate in Mississippi at the time of death, exclusive of any interest in real property, was less than $10,000, not including exempt property.
- The petition must recite that all of the known debts of the decedent and estate have been paid, if any, including any estate and income taxes.
- Any beneficiary under a legal disability must sign the petition by legal guardian or parent.
- Since the petition is sworn, and since the statute lays down specific requirements, it is a good idea to include all of the statutory prerequisites (e.g., that the decedent died owning real property in the state of Mississippi, that no estate or income taxes are due, etc.), and to track the language of the statute verbatim. If I were doing it, I would simply draft my petition tracking the statute phrase for phrase.
I have seen lawyers come to grief over their petitions simply because they got creative. One tried to argue with me that this sentence was enough to qualify under the statute: “The only property the decedent owned at the time of death is the real property described herein.” That’s not good enough, in my opinion, because there must be shown in the petition that “The value of the decedent’s personal estate in the state of Mississippi at the time of his or her death, exclusive of any interest in real property, did not exceed … etc.”). Again: I suggest that you simply track verbatim the language of the statute as far as you can.
I have never had to present live testimony beyond the sworn petition to obtain a judgment under the statute, and I do not require it; however, I have heard that some chancellors do require testimony, so you need to find out how your chancellor does it before you set aside time to present your petition.
The statute specifically provides that the procedure does not deprive any interested party of the right to a formal administration of the estate, or to file a will contest. Thus, probate as a muniment is not an effective, shorthand substitute for actual probate of a will.
Where to file? That should be governed by MCA § 91-7-3.
Caveat: Do not include language in your judgment that adjudicates ownership, heirship or anything of the sort. An adjudication that the petitioners are all of the named beneficiaries in the will, and that the property is admitted to probate as a muniment of title only is all that the statute contemplates.
July 21, 2010 § 6 Comments
[This information comes from the outline of a presentation made by Bob Williford to the Chancery Judges Spring Conference earlier this year. Used with his permission.]
Vesting of title.
Real property vests directly in the heirs in an intestacy. Parker v. Newell, 245 So.2d 575 (Miss. 1971). It vests in the devisees in a testate estate. Anderson v. Gift, 126 So. 656 (Miss. 1930). Also See, In Re Estate of McRight, 766 So.2d 48 (Miss. App. 2000).
Even though the real property passes directly to the heirs or devisees, and not into possession of the Administrator or Executor (unless the Executor is directed by the will to sell the real property), it is subject to the claims of creditors and payment of estate expenses. The rules of abatement govern the order in which assetss of the estate must be first applied to such claims and expenses. Gordon v. James, 39 So. 18 (Miss. 1905); §§ 91-7-91 and -191, MCA.
Authority to sell real property.
When a petition to sell real property to pay debts is filed, all parties interested shall be cited by personal summons or publication. § 91-7-197. The burden of proof is on the petitioner to show that the land must be sold in preference to the personal property. Brown v. McAfee, 421 So.2d 1061 (Miss. 1982); Blum v. Planters’ Bank & Trust Co., 122 So. 784 (Miss. 1929). In such instances the Executor or Administrator would generally be the petitioner.
A will may grant the Executor the express authority to sell the real property. Glidewell v. Pannell, 130 So.2d 288 (Miss. 1930). If the Executor under the will is specifically instructed to sell the real property, there is no requirement for court approval. Davis v. Sturdivant, 19 So.2d 499 (Miss. 1944).
Execution of the deed.
If the property has vested in the heirs or devisees, the Administrator or Executor should not sign the deed. See the citations above. There is no title in the Administrator or Executor to convey. The heirs or devisees sign the contract, exeecute the deed, and receive the cash proceeds.
There are, however, two instances in which the personal representative will sign the deed. First, if the Executor is given the power of sale by the terms of the will, he or she should execute the will. Second, if the sale is by court order, the Executor or Administrator should sign the deed. §§ 91-7-187, -189, and -191, MCA. The practical effect of sale by court order is to divest the title out of the heirs or devisees, as the case may be.
Necessity of bond.
When real property is sold pursuant to a decree of the court, the Executor or Administrator shall execute a bond equal to the proceeds of the sale of the land. § 91-7-205, MCA. This code section does not apply to a sale by the heirs or devisees in whom title has vested.
There is an exception to the requirement of bond. If the time within which all claims of creditors against the estate has expired, the court may waive all or any part of the bond when all the beneficioaries to the proceeds of the sale petition the court to authorize the sale and waive the necessity of a bond. § 91-7-205, MCA.
If an Executor or Administrator fails to give the bond required, the court may direct a master to make the sale, and, after confirmation, convey the land. § 91-7-207, MCA. An early case held that failure to give the bond voids the sale. Buckner v. Wood, 45 Miss. 57 (1871).