Date: 10-02-2019

Case Style:

In Re Estate of Harry J. Green, Deceased: Elide Cristina Garrido Green v. Shirley Cooley and Wilford Green

Case Number: 2017-CA-01641-COA

Judge: Anthony N. “Tony” Lawrence III

Court: COURT OF APPEALS OF THE STATE OF MISSISSIPPI

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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,
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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,
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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.

Outcome: 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
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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.

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