Barkley v. Boyd

• Decision Date: 24 January 1924
• Docket Number: 3 Div. 637.
• Citation: Barkley v. Boyd, 211 Ala. 50, 99 So. 196 (Ala. 1924)
• Parties: BARKLEY v. BOYD ET AL.
• Court: Alabama Supreme Court

99 So. 196

211 Ala. 50

BARKLEY v. BOYD ET AL.

3 Div. 637.

Supreme Court of Alabama

January 24, 1924

Rehearing Denied Feb. 14, 1924.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill in equity by B. F. Boyd and another against Fannie M. Barkley for cancellation of a deed, etc. From a decree for complainants, respondent appeals. Affirmed.

See also, 98 So. 463.

Brassell & Brassell, of Montgomery, for appellant.

W. A Jordan, of Montgomery, for appellees.

GARDNER J.

This is an appeal from the decree canceling a certain deed executed by Elizabeth Videto to Fannie M. Barkley, dated September 8, 1920, conveying real estate situated on the corner of Burton avenue and Decatur street, in the city of Montgomery. The bill was filed by B. F. Boyd, nephew of Elizabeth Videto, and his wife, to whom the land embraced in the above-mentioned deed was devised by the said Elizabeth Videto, in her will executed June 27, 1921, which will has been duly admitted to probate; the said testatrix having died in the month of August, 1921.

The deed of September 8, 1920, was executed upon a recited consideration of $10, and the further consideration that the grantee, Fannie M. Barkley, should provide that which was necessary for the grantor's comfort and well being during the remainder of her life. On May 11, 1921, Fannie M. Barkley executed a mortgage upon the property in consideration of a loan of $1,500, and on October 29th, thereafter, executed another mortgage in consideration of $1,000 advanced by the mortgagee of the first mortgage. The bill admits the binding force of the mortgage of May 11, 1921, but attempts to have the mortgage of October 29th canceled upon the ground that the mortgagee had full notice. The court below denied relief as to this mortgage, but granted to complainants the relief sought as to the cancellation of the deed of September 8, 1920, resting the conclusion upon the finding that the same had been procured by the exercise of undue influence. The appeal is by the respondent, and no question as to the mortgage is therefore here presented for consideration.

It is first insisted by counsel for appellant that the bill was insufficient as one seeking a cancellation of the instrument upon the ground of undue influence, in that the facts constituting undue influence are not sufficiently set forth. It is now the settled rule in this state that a bill praying relief on the ground of undue influence is not subject to demurrer for a failure to aver the acts of undue influence in detail. The bill as amended is sufficient in this respect in its averments under the authorities of Strickland v. Strickland, 206 Ala. 452, 90 So. 345; Pilcher v. Surles, 202 Ala. 643, 81 So. 585. No error therefore in this respect is here shown.

As to the merits of the cause, much evidence was submitted by the respective parties and the witnesses (with but one exception) examined orally before the court.

The question of undue influence depends upon the circumstances of each particular case. It is a species of constructive fraud, difficult of direct proof, and much latitude is allowed in the testimony. Chandler v. Jost, 96 Ala. 596, 11 So. 636; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459. To discuss the evidence would serve no useful purpose, and such has not been the practice of this court since the passage of the act of 1915, p. 594. Underwood v. Underwood, 200 Ala. 690, 77 So. 233.

A very brief reference to some of the salient features will suffice. The grantee was no relation to the grantor, but there existed between them a close friendship of many years standing. The grantor was at the time of the execution of this deed about 75 years of age, and in very feeble health. She and her husband had been living separate and apart for about two years prior thereto, and she was without child, and more or less alone in the world. There is evidence tending to show that she was of very low mentality, very childish, and indeed, her physician so testified, and further stated that in his opinion she was incapable of business transactions. Her condition was described by others as hysterical, and she appeared to be obsessed with the fear she would be stricken and die unattended. It is evident the grantor reposed much confidence in her long-time friend Mrs. Barkley, and, indeed, the execution of the deed upon the conditions therein named is very good evidence of such confidence and trust, for, as said in the quotation found in Russell v. Carver, 208 Ala. 219, 94 So. 128,...