Black v. Campbell

Decision Date03 November 1927
Docket Number4 Div. 339
Citation217 Ala. 134,115 So. 19
PartiesBLACK v. CAMPBELL.
CourtAlabama Supreme Court

Rehearing Denied Jan. 12, 1928

Appeal from Circuit Court, Covington County; W.L. Parks, Judge.

Bill by Bama Lee Black against D.J. Campbell to cancel a deed to lands. From a decree dismissing the bill, complainant appeals. Affirmed.

Emmet S. Thigpen, of Andalusia, and Ira B. Thompson, of Luverne for appellant.

Baldwin & Murphy, of Andalusia, for appellee.

BROWN J.

The lands in controversy, consisting of 110 acres situated in Covington county, Ala., were devised by the will of R.H McDaniel, who died on August 5, 1921, to the complainant. It appears that McDaniel owned the lands at and prior to his death, and that his will was duly admitted to probate.

On November 15, 1924, complainant and her husband, for a recited consideration of "five hundred ($500.00) dollars" to them "in hand paid" by the respondent, by deed duly executed and delivered, "remised, released quitclaimed, and conveyed" to the respondent all of their "rights, title, interest, and claim in or to" said lands.

The complainant filed this bill, on the 13th day of June, 1925, seeking to annul said deed on the ground that its execution was procured by the respondent through fraud, actual or constructive. The case was submitted to the trial court for final decree on the pleadings and proof, most of which was taken ore tenus, and, after due consideration, the bill was dismissed, and from the decree dismissing the bill this appeal is prosecuted.

One phase of fraud asserted by the bill is that the respondent fraudulently represented to the complainant that she did not have a good title to the land; that some of McDaniel's relatives had threatened to contest the will--to use the language of the bill, "to tear that will up"--and that, if the complainant and her husband would make a quitclaim deed to him, he could make them a deed in three weeks "that could not be torn up"; that he would deposit with them $500, and they could pay the money back together with any expense incurred by him when he executed the deed back to her.

The only evidence offered to sustain this phase of the bill was the testimony of complainant. This is not only denied by the respondent and Childre, the justice of the peace who prepared the deed, but respondent offered the testimony of other witnesses going to show that complainant, before the deed was executed to the respondent, had offered to sell to another; and, after the execution of the deed, she had stated that she had sold the property; that "she had her money, and was out of the mess, and she wouldn't be back in it for anything that was there." These witnesses all testified in open court, and under the rule of our decisions the conclusion of the trial court predicated on testimony so given will not be disturbed, unless it is plainly and palpably erroneous, and in this case we are of opinion that, so far as this phase of the case is concerned, it should not be disturbed. McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917.

Another contention made by the appellant is that the execution of the deed was procured by undue influence exercised by the respondent over the complainant, and this is based on the evidence--stating it most favorably to complainant--going to show that the complainant is illiterate and without business experience; that the respondent is a physician, a man of much learning and business experience; that he was complainant's family physician, and attended her on the occasion of the birth of her four children; that he was also the family physician of the McDaniels, in whose home complainant lived before the death of McDaniel; and that he was a frequent visitor, in his professional capacity, in that home, and often came in contact with the complainant, and discussed with complainant her business affairs. On the other hand, it appears without dispute that complainant's husband participated with her in the transaction and in the execution of the deed, joining therein as required by the statute, and as to his capacity, business experience, and intellectual attainments the evidence is silent.

In these circumstances there is an absence of any of these technical relations from which the relation of trust and confidence is presumed by law to arise, and, if such relation existed, it was one of fact, and the burden of proving it rested upon the complainant, who asserted its existence. Nelson v. Brown (Brown v. Nelson) 164 Ala. 397, 51 So. 360. The questions presented on this phase of the case, like the others which we have disposed of, are presented on testimony given orally in the presence of the court, and rested entirely on inference to be drawn from such evidence, and we do not feel justified in disturbing the decree of the lower court on this ground.

The next and last contention of appellant is that, viewing...

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5 cases
  • Mitchell v. Harris, 3 Div. 392
    • United States
    • Alabama Supreme Court
    • 8 Abril 1971
    ...physicians are included among those assumed to have special opportunities for exerting influence.' In our case of Black v. Campbell, 217 Ala. 134, 115 So. 19, a conveyance by a patient to her physician was sought to be set aside on the ground that the conveyance resulted from undue influenc......
  • Penney v. Warren
    • United States
    • Alabama Supreme Court
    • 3 Noviembre 1927
  • Cary v. Cary
    • United States
    • Alabama Supreme Court
    • 22 Mayo 1952
    ...562; Judge v. Wilkins, 19 Ala. 765. But it is a material circumstance on the question of duress as alleged in the bill. Black v. Campbell, 217 Ala. 134, 115 So. 19; Finklea v. Perryman, 239 Ala. 450, 195 So. Although an attorney signed the contract with appellant, the bill does not show wha......
  • Finklea v. Perryman, 2 Div. 156.
    • United States
    • Alabama Supreme Court
    • 11 Abril 1940
    ... ... or conveyance a court of equity will decree its invalidity ... and cancel it. Black v. Campbell, 217 Ala. 134, 115 ... (5) ... Moreover, the bill alleges that said Finklea, posing as a ... neighbor and personal friend of ... ...
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