Brothers v. Moore

• Decision Date: 09 September 1977
• Citation: Brothers v. Moore, 349 So.2d 1107 (Ala. 1977)
• Parties: Grace BROTHERS v. Pauline MOORE et al. In re ESTATE of Mattie L. MOORE, Deceased. SC 2063.
• Court: Alabama Supreme Court

Page 1107

349 So.2d 1107

Grace BROTHERS v. Pauline MOORE et al. In re ESTATE of Mattie L. MOORE, Deceased.

SC 2063.

Supreme Court of Alabama.

Sept. 9, 1977.

Jack W. Torbert of Simmons & Torbert, Gadsden, for appellant.

James F. Hinton, Gadsden, for appellees.

TORBERT, Chief Justice.

Grace Moore Brothers, individually and as administratrix of the Estate of Mattie L. Moore, petitioned the trial court to set aside a deed which had been executed in 1961 by Mattie L. Moore. The case was heard ore tenus and after an extensive hearing the court upheld the validity of the deed and denied the relief sought. Mrs. Brothers then filed a motion for rehearing or alternatively a motion for a new trial, which was denied. The denial of the motion in the alternative is the basis for this appeal.

J. A. Moore and Mattie Moore were the parents of seven children, two of whom were Grace Moore Brothers and Grady Moore. In 1939, J. A. Moore, fearing a judgment decree, conveyed all of his real estate holdings to various members of his immediate family. The 40 acres in issue here was conveyed to Grady Moore. J. A. Moore died in June 1947 and in December 1947 Grady Moore and his wife Pauline conveyed the same 40 acre tract to Mattie Moore. Apparently there was no consideration involved in either of these conveyances. After J. A. Moore died Grady and Pauline Moore moved into the same house with Mattie Moore in order to care for her. Shortly thereafter, Grady and Pauline took up residence in a house next door to Mattie Moore and lived there for the remainder of Mattie Moore's life.

Mattie Moore executed a deed for the 40 acres to Grady and Pauline Moore on March 4, 1961. The deed was prepared and witnessed by a Notary Public. This deed was not filed for record until December 13, 1972. From March 1961 until December 1972 the 40 acre tract continued to be assessed in Mattie Moore's name and the taxes on the property were paid on her behalf by Grady Moore.

Mattie Moore died on February 17, 1971 and Grady Moore died on December 9, 1972. The defendants in this case were Pauline Moore and the two children of Grady Moore.

In the court below, the appellant based her case on three theories, those theories being Mattie Moore lacked the mental capacity to execute the 1961 deed, Grady and Pauline Moore held the land as constructive trustees for the heirs of Mattie Moore, and the deed was procured through the exercise of undue influence by Grady Moore over his mother.

The primary and almost exclusive thrust of the evidence put on in the trial court concerned the issue of mental capacity. There was contradictory evidence presented on this issue and it is apparent that the trial court after having heard all the evidence ruled that Mattie Moore did have the mental capacity in 1961 to convey the property. In cases such as this, the ore tenus rule requires that this Court uphold the trial court's finding unless it is plainly erroneous or manifestly unjust. Jones v. Ball, 294 Ala. 654, 320 So.2d 665 (1975); Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695 (1975); Smith v. Gill, 293 Ala. 736, 310 So.2d 214 (1975). On the issue of competency we uphold the finding of the trial court.

The second contention of the appellant is that the property was held in constructive trust. A constructive trust is a creature of equity which operates to prevent unjust enrichment. A constructive trust will be found when property has been either acquired by fraud, or where in the absence of fraud it would not be equitable to allow it to be retained by him who holds it. Sims v. Reinert, 285 Ala. 658, 235 So.2d 802 (1970); Putnam v. Putnam, 274 Ala. 472, 150 So.2d 209 (1963). The issue of whether or not a constructive trust results is one of fact and as stated previously where the evidence is heard ore tenus the trial court's finding of fact will not be disturbed unless it is clearly erroneous or manifestly unjust. We find that the evidence in this case supports the trial court's finding that there was no constructive trust.

A consideration of the last issue raised, regarding the alleged undue influence of Grady Moore over Mattie Moore, must be viewed in light of their relationship of parent and child. This relationship is considered confidential and it is presumed that in all transactions between parent and child, the parent is the dominant party. However, this presumption is not conclusive and where it is made to appear that the child rather than the parent is the dominant party then the law raises a presumption of undue influence and casts upon the child the burden of proving that the transaction was fair, just, and equitable in every respect. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970); Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878 (1970); Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (1960).

The evidence produced below tended to show that Grady Moore lived next door to his mother from 194...