IN THE SUPREME COURT OF MISSISSIPPI

NO. 92-CA-00552-SCT

GEORGE H. CRADDOCK, SR.

v.

WILLIAM J. BRINKLEY, III

DATE OF JUDGMENT: 10/30/91

TRIAL JUDGE: HON. JAMES LAMAR ROBERTS, JR.

COURT FROM WHICH APPEALED: TISHOMINGO COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANTS: HAROLD S. JACKSON

ATTORNEY FOR APPELLEE: DONALD RAY DOWNS

NATURE OF THE CASE: CIVIL - REAL PROPERTY

DISPOSITION: AFFIRMED - 3/28/96

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 4/18/96

BEFORE PRATHER, P.J., BANKS AND McRAE, JJ.

McRAE, JUSTICE, FOR THE COURT:

¶1. George H. Craddock, Sr. filed a complaint in the Chancery Court of Tishomingo County on July 3,

1989 against William J. Brinkley, III [hereinafter Brinkley] asking the court to order reformation of a

scrivenor's error in a legal description of property in a deed of trust given to Craddock by the defendant's

father, W. J. Brinkley [hereinafter W.J.], on December 2, 1974. Brinkley replied that the subject property

was homestead property, and requested the court to set aside the November 30, 1981 foreclosure of the

property for failure of his mother, Flora Lee Brinkley, to sign the deed of trust. Because the chancellor was

correct in declaring the conveyance void due to Flora Lee's failure to sign the deed of trust, we affirm the

October 30, 1991 decree of the chancery court canceling all clouds on the title in favor of Brinkley who

received his interest in the property through descent and distribution.

I.

¶2. The facts revealed that Craddock made a series of loans to his brother-in-law, W.J. Brinkley, in the

early 1970's for the purpose of developing property in Iuka, Mississippi. W.J. gave a deed of trust to

Craddock on December 2, 1974 on property he referred to as the "Pinecrest Property" as security for the

loans which amounted to $20,000 at that time. Tax receipts indicated that the size of the parcel was

approximately 45 acres. Craddock testified that W.J. planned to develop the property into a residential

subdivision called Pinecrest. The legal description in the 1974 deed of trust stated that the property ran
"south parallel with range line 107-2/3 rods." A prior deed of trust from W.J. to Craddock securing another

loan gave the same description. However, the legal description of the property in the original warranty deed

which W.J. received when he purchased the property in 1960 indicated that the property ran "south parallel

with range line 170-2/3 rods."

¶3. Craddock continued to advance W.J. money. This was evidenced by a $36,500 promissory note given

to Craddock by W.J. which was signed by W.J. and his wife, Flora Lee, on September 1, 1975. The

promissory note indicated that it was also secured by the deed of trust W.J. had executed and given to

Craddock on December 2, 1974.

¶4. Craddock assigned the indebtedness to the Banco Continental de Panama [hereinafter Bank of

Panama] on July 29, 1981 in order to enhance his line of credit with the bank. After the Bank of Panama

failed to receive payment on the debt, they appointed a substitute trustee and foreclosed on the property

receiving a substitute trustee's deed on November 30, 1981.

¶5. The Bank of Panama then conveyed the property by way of warranty deed back to Craddock on

January 1, 1981. The property has been in Craddock's possession ever since. The legal description of the

property in all documents following the 1974 deed of trust have continued to provide that the property runs

"south parallel with range line 107-2/3 rods."

¶6. Craddock kept the property bush-hogged and paid the property taxes every year after gaining

possession of the land. He cut some of the timber on the property in 1985. Brinkley objected some two

years later, but maintained that he did so as soon as he learned that the timber had been cut. The property

was eventually surveyed and found to be too small to contain the Pinecrest subdivision W.J. had proposed.

However, it was possible to plat the description provided in the deed of trust.

¶7. Craddock initiated a suit to have the instrument reformed to reflect the entire Pinecrest property.

Nothing in the deed of trust, however, indicated that the land securing the loan was called Pinecrest.

Craddock testified that all of the instruments beginning with the 1974 deed of trust should have read "170-

2/3 rods" instead of "107-2/3 rods."

¶8. Brinkley maintained that when his father, W.J., gave a deed of trust to Craddock on the property in

issue, the property constituted part of the 145 contiguous acre homestead of his father and mother. The

1974-75 homestead declarations for his parents showed that the subject property was part of their

homestead. Brinkley obtained his interest in this land by descent and distribution. W.J. died intestate on

September 13, 1978 leaving as heirs in law his wife, Flora Lee, and two sons, one of which is Brinkley.

Brinkley's brother conveyed his interest in the property to his mother, Flora Lee, on January 3, 1980. By

instruments dated August 12, 1988 and August 1, 1989, Flora Lee conveyed all of her interest in the

subject property to Brinkley.

II.

¶9. Through the use of parol evidence, the chancellor concluded that there was an error in the 1974 deed

of trust, and that it should have been reformed to read, "south parallel with range line 170-2/3 rods," had it

been a valid document. However, the December 2, 1974 deed was declared null and void, and all

subsequent documents incident to the foreclosure were set aside because Flora Lee Brinkley failed to

execute the deed of trust on the property which constituted the homestead of W.J. and Flora Lee Brinkley.
¶10. Miss. Code Ann § 89-1-29 (1991) provides that a deed of trust is invalid and not binding "unless

signed by the spouse of the owner if the owner be married and living with the spouse." The validity of the

deed of trust is judged by the circumstances existing at the time of its execution. Hughes v. Hahn, 209

Miss. 293, 46 So. 2d 587 (1951). Subsequent actions by the spouse who failed to join in the execution

cannot cure the invalidity of the instrument. Welborn v. Lowe, 504 So. 2d 205, 206 (Miss. 1987).

¶11. Craddock recognizes that Flora Lee failed to sign the deed of trust. He maintains, however, that her

signature on a promissory note evidencing an indebtedness was sufficient to validate the deed of trust. The

promissory note which was signed by Flora Lee and W.J. on September 1, 1975, provides the following

with respect to the 1974 deed of trust: "This note secured by Deed of Trust on real property dated

December 2, 1974, and recorded in Book 73, page 525."

¶12. The facts demonstrate that this promissory note was executed nearly one year after W.J. gave

Craddock the deed of trust. Flora Lee's subsequent act of signing the promissory note cannot operate to

cure the original deed of trust's invalidity. Nor was the note an attachment to, or an integral part of the 1974

deed of trust as the note was signed nearly one year later. See United Miss. Bank v. GMAC Mortgage

Co., 615 So. 2d 1174, 1176 (Miss. 1993) (finding deed of trust for homestead property was valid without

wife's signature on deed of trust because her signature appeared on two other attachments which were an

integral part of deed). A promissory note and a deed of trust are two separate and distinct instruments. The

spouse has never signed the deed of trust. Consequently, the absence of Flora Lee's signature on the

original deed of trust is not cured by her signature on the promissory note.

¶13. Craddock also contends that the property in issue does not qualify as homestead property in the first

place. Craddock specifically contends that the property in issue cannot be considered part of the

homestead because it was neither contiguous nor within one mile of the parcel of property containing the

residence of W.J. Brinkley, and because W.J. intended to develop a subdivision on the property.

¶14. Craddock's assertion in his brief that the property was not contiguous is not supported by evidence at

trial. The chancellor's decision on this issue will not be overturned unless manifestly erroneous. Snow Lake

Shores Prop. Owners Corp. v. Smith, 610 So. 2d 357, 360 (Miss. 1992). As pointed out by Craddock,

however, there is evidence that W.J. did consider at one time the possibility of developing the property into

a subdivision. He argues that this fact should defeat the classification of the land as homestead property.

¶15. The test for determining whether land qualifies as part of the homestead is whether it is being used for

homestead purposes. Tanner v. Tanner, 111 Miss. 460, 467, 71 So. 749, 750 (1916). Other than the

fact that W.J. Brinkley was considering the possibility of developing a subdivision on the property in

dispute, there is no evidence that this property was being used for something other than homestead

purposes. Further, there is no indication that his spouse, Flora Lee, was considering this property as

anything other than her homestead. Craddock merely contends that the property was being considered for

commercial purposes at the time the deed of trust was executed. This fact in itself does not disqualify the

property as the Brinkley's homestead. Since Craddock does not actually contend that the property was in

fact used for commercial purposes, we find that the property in issue qualified as homestead property.

¶16. Flora Lee Brinkley failed to sign the deed of trust given to Craddock in 1974. Her failure to sign the

1974 deed of trust makes the instrument null and void as a matter of law. This issue is dispositive of this

case. Since this was the instrument used as the basis for foreclosure on the property, the chancellor

appropriately set aside the foreclosure and determined that title should vest in Brinkley who received his
interest in the property via the laws of descent and distribution.

¶17. JUDGMENT IS AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, SMITH AND MILLS, JJ.,

CONCUR. ROBERTS, J., NOT PARTICIPATING.