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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CA-00396 COA IN THE MATTER OF THE ESTATE OF CLARA JANE HENDERSON, DECEASED: DALE MILSTEAD v. VIOLA CLIFTON, EXECUTRIX APPELLANT

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: FOR APPELLANT: ATTORNEY FOR APPELLEE: NATURE OF THE CASE: TRIAL COURT DISPOSITION: DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED: 02/13/96 HON. JERRY G. MASON LAUDERDALE COUNTY CHANCERY COURT T. JACKSON LYONS OFFICE OF THE ATTORNEY GENERAL BY: BOBERT JAMES BRESNAHAN CIVIL - REAL PROPERTY DEED SET ASIDE AND TITLE CONFIRMED IN ESTATE OF CLARA HENDERSON AFFIRMED - 12/16/97

2/4/98

BEFORE BRIDGES, C.J., COLEMAN, AND HINKEBEIN, JJ. BRIDGES, C.J., FOR THE COURT: Suit was filed in the Lauderdale County Chancery Court to set aside certain deeds to real property and confirm title in the estate of Clara Henderson. The chancellor did so, and on appeal Dale Milstead argues that he was a bona fide purchaser for value without notice and therefore the chancellor erred in setting aside the deeds to certain real property he purchased in Meridian, Mississippi. Milstead raises the following issues on appeal:

I. BECAUSE THE ESTATE AND MS. CLIFTON AS EXECUTRIX, HAVE NO INTEREST IN THE REAL PROPERTY, THEY HAVE NO STANDING TO SEEK RELIEF AND THE TRIAL COURT HAD NO SUBJECT MATTER JURISDICTION OF THE LAWSUIT. II. AS A BONA FIDE GOOD FAITH PURCHASER FOR VALUE WITHOUT NOTICE, DALE MILSTEAD SHOULD TAKE AN INTEREST IN THE REAL PROPERTY WHERE THE WARD'S GUARDIAN'S FAILED, FOR FOUR YEARS, TO PROTECT THE WARDS'S ESTATE. We agree with the chancellor's finding that Clara was unable to execute the deeds while under the guardianship, and that Milstead was not a bona fide purchaser for value without notice and affirm. FACTS This action involves two parcels of real property in Meridian, Mississippi originally conveyed to Clara Henderson by her then husband William Johnson in June 1956. Houses were on both pieces of property; Clara lived in one house and rented out the other. In the late 1980's, Clara began to show signs of dementia and was treated by several doctors. In March 1990, Dr. White, her psychiatrist, opined that Clara did not have testamentary capacity and that a guardianship should be established. The Lauderdale County Chancery Court rendered an "order of appointment of guardian" on May 16, 1990. Clara subsequently moved to Chicago, Illinois where she was cared for by a nephew who was appointed guardian in Cook County, Illinois. The Mississippi guardianship was closed and the guardian released on November 10, 1992. A final accounting was submitted; however, no mention was made of any real property. This suit was filed by Freddie Walker, Clara's Illinois guardian, on May 24, 1994. Subsequently to the filing of the complaint, Clara died. On August 5, 1994, the attorney for the Estate of Clara Henderson moved the court to substitute the estate as plaintiff in this cause. The court granted the motion. The motion did not specify anywhere that the estate was acting for the benefit of the heirs. At trial, several witnesses testified about their observation of Clara in the late 1980's and early 1990's. Apparently Clara had taken up with Joe Joseph, a man much younger than she was. Testimony revealed that Joe Joseph was also known as William Young. Joseph lived behind Clara, but was often at her house. Several times Clara and Joseph were found in extremely compromising positions by different people. They were found naked at her house by neighbors, as well as engaging in different sexual acts. Often Clara would dress inappropriately for the season, wearing fur coats and the like in the middle of July. Once Clara was found walking the streets of her neighborhood in the early morning hours partially clothed. Several people close to Clara felt that Joseph was getting Clara's money and "taking her to the bank." A marriage license issued in February 1990 evidences that Clara and Joseph may well have been married. The Clarke County Circuit Clerk testified that she remembers issuing the license, despite her feeling that Clara did not have control of her mental capacity. The Clerk felt that Joseph, who did all the talking, was trying to get something out of Clara. Subsequently, several deeds were executed over the next several years conveying Clara's two parcels of property to various grantees. The parcels ultimately by mesne conveyances ended up in the hands of appellant, Dale Milstead. Milstead entered into transactions with Rissho Ankoku to purchase the two parcels. The consideration paid for the

two parcels was a boat motor, a trailer, and a 1979 Ford pickup truck. No money ever passed between Milstead and Ankoku. Milstead testified that Ankoku originally wanted $15,000, but then dropped his asking price to $10, 000. At one point in his testimony, Milstead stated that the value of Tract I and Tract II was between $16,000 and $18,000. Milstead applied for a $10,000 loan, but the loan was refused because of outstanding liens on the property. The title check revealed that the property was vested in Rissho Ankoku, Inc. and Joe Joseph Real Estate, and was subject to taxes and special assessments for 1993, as well as a tax sale and interest for 1991 and 1992. Additionally, there were two judgments rendered against the property. However, there was no indication of Clara's guardianship. Milstead stated that the liens and the judgments did not bother him because he could take care of them. He claims that he was a bona fide purchaser in good faith without notice of the guardianship or Clara's incompetency. He asserts that the guardian, as fiduciary, had a duty to protect Clara's property and has waited too late to do so. The chancellor found that a fiduciary relationship existed between Clara and Joe Joseph, and that Joseph exercised undue influence over Clara. Further, the chancellor found no evidence rebutting the presumption that Joseph exercised undue influence over Clara to get her to convey Tract I and Tract II to him and other entities. Moreover, it was the chancellor's finding that Clara did not have the capacity to execute the deeds while under the guardianship. Additionally, the chancellor found that Milstead failed to prove by a preponderance of the evidence that he was a bona fide purchaser for value, in good faith, and without notice. Consequently, the chancellor canceled and set aside all deeds out from Clara and all subsequent conveyances. The chancellor confirmed title in the Estate of Clara Henderson. I. BECAUSE THE ESTATE AND MS. CLIFTON AS EXECUTRIX, HAVE NO INTEREST IN THE REAL PROPERTY, THEY HAVE NO STANDING TO SEEK RELIEF AND THE TRIAL COURT HAD NO SUBJECT MATTER JURISDICTION OF THE LAWSUIT. Milstead claims that the chancellor lacked subject matter jurisdiction of this action. His real complaint, however, is that it was not brought by the real parties in interest. The suit was brought by the executrix of Clara's estate on behalf of the estate, and Milstead claims that the real parties in interest were the devisees under the will since title to the real property passed to them without the necessity of any intervening formal act by the executrix. The executrix in this case was also one of the two devisees under the will. He refers the Court to the case of Clinton v. Robbins, 32 So. 2d 145, 145 (Miss. 1947), where the supreme court held that an administratrix was without authority to litigate matters affecting the title to her decedent's real property. In that case, the court observed that "[n]o basis is alleged for her assumption of this prerogative of the heirs." Id. In the case before us now, both devisees under the will petitioned the court to permit the executrix to pursue the recovery of the real property on their behalf, and the court approved the petition. It was under this specific grant of authority that the executrix was proceeding and not strictly under her generic rights and duties as executrix. In effect, the devisees were content to have the executrix appointed as their agent to pursue their rights in the property. They would, therefore, appear to be bound by the outcome of the litigation, unlike the heirs at law in Clintonwho were neither parties to the litigation nor had consented to its commencement in any way.

We observe that the statute governing the rights and duties of an executor includes the provision that the executor "shall also have a right to the possession of the real estate so far as may be necessary to execute the will, and may have proper remedy therefore." Miss. Code Ann.

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