Elide Cristina Garrido Green v. Shirley Cooley

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.

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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.

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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.

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¶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.”

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¶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.

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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.

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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].”).

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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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