Cox v. Parker

• Decision Date: 23 October 1924
• Docket Number: 4 Div. 141.
• Citation: 101 So. 657,212 Ala. 35
• Parties: COX v. PARKER ET AL.
• Court: Alabama Supreme Court

101 So. 657

212 Ala. 35

COX v. PARKER ET AL.

4 Div. 141.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Bill in equity by J. M. Parker and others against J. E. Cox. From a decree for complainants, respondent appeals. Affirmed.

C. D Carmichael, of Geneva, and Farmer, Merrill & Farmer, of Dothan, for appellant.

Mulkey & Mulkey, of Geneva, for appellees.

BOULDIN J.

The bill is for the cancellation of a deed of gift conveying real estate. The deed was made during the last sickness of the grantor. The bill is filed by her heirs at law. By detailed averments the bill alleges confidential relations between the donor and donee, voluntary activity of the donee in the procurement of the deed; that the will of the donee became dominant, and the donor, in making the deed, was dominated and controlled by the will of the donee; that the execution of the deed was not the free and voluntary act of the donor; and (paragraph 9) "that, at the time of the signature by her, she had become greatly weakened mentally and physically, and did not know or understand the nature or the consequences of the act she was about to perform."

In setting up undue influence as equitable ground to cancel a deed, or as ground of contest of a will at law or in equity the quo modo need not be shown. It is sufficient to aver in general terms that the deed or will was the result of the undue influence of a named persons or persons. Grubbs v. Hawkins, 208 Ala. 349, 94 So. 484; Johnson v. Johnson, 206 Ala. 523, 91 So. 260; Letohatchie Church v. Bullock, 133 Ala. 552, 32 So. 58; Alexander v. Gibson, 176 Ala. 262, 57 So. 760; Strickland v. Strickland, 206 Ala. 452, 90 So. 345; Cunninghame v. Herring, 195 Ala. 469, 70 So. 148.

If the pleader does not adopt this rule, but undertakes to give the facts, they must make a case warranting a finding of undue influence. When the facts averred make a prima facie case of undue influence, followed by averment to the effect that the deed was the result thereof, this is sufficient. We think the bill, as amended, is sufficient as a bill to cancel for undue influence. Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; Powe v. Payne, 208 Ala. 527, 94 So. 587.

It is suggested that paragraph 9, above quoted, avers in substance a want of mental capacity to execute the deed, and renders the bill demurrable. The averment above does not in terms aver that the donor, by reason of physical and mental weakness, was incapable of understanding the nature or consequences of the transaction, but that she did not. This may be taken as a charge that mental weakness so subjected her to the dominance of the will of another that she, in fact, signed the paper not understanding its nature or consequences. If, in truth, the maker of a deed of gift, by reason of severe and protracted sickness, is so reduced by mental and physical weakness as to become the mere passive agent of the dominating will and suggestions of another, signing the paper under such influence, without a mental grasp of its nature, purpose, or effect, it may be regarded as the product of undue influence. Notwithstanding the weakened powers fully aroused and facing other conditions might be capable of the mental process of knowing the property, the person to whom it is to be conveyed, and the manner she wishes to dispose of it-to comprehend the subject-matter of the transaction and will to do it-still, if such weakened mentality furnishes the occasion and the opportunity to one in close confidential relations to interpose his own will and obtain a signature without such comprehension and will to act, this is undue influence.

In taking testimony, evidence was produced by expert witnesses and others tending to show mental incapacity-want of capacity to know and understand the nature of the transaction in which the donor was engaged. The suggestion is made that on an issue of undue influence alone, such testimony should be disregarded; that undue influence implies mental capacity, but controlled and supplanted by the will of another; that proof of mental incapacity disproves undue influence. We consider this position correct.

Without an averment putting in issue the question of mental capacity, testimony on that point, as distinguished from mental weakness in connection with undue influence, is not pertinent. We think the averments of the bill sufficient to raise the issue of the soundness of mind of the donor. While, as stated, it is not charged in terms she was of unsound mind, it is charged that, by reason of physical and mental weakness, she did not understand the nature or consequences of the act. This averment put in issue her mental condition. Evidence that she could not understand certainly supports an averment that she did not. Taking this view of the bill as urged by appellant, and followed in the production of evidence, a question recurs on the demurrer to the bill.

We have held that a bill to cancel a conveyance because the grantor is non compos mentis will not lie in favor of one out of possession, and having a present right to sue at law for possession. The deed being void, the remedy at law is deemed adequate. Lewis v. Alston, 184 Ala. 339, 63 So. 1008.

Undue influence is, within itself, an equitable ground for cancellation. The general rule obtains that a bill in the alternative must show equity in either alternative.

Is a bill for concellation on the ground of undue influence, with cumulative averments of mental incapacity, subject to demurrer? What state of proof will warrant the relief prayed?

There is general power in a court of equity to remove clouds from title by cancellation. It declines jurisdiction where the case presented shows an adequate remedy at law. Again, equity abhors a multiplicity of suits, and, when jurisdiction is obtained on equitable grounds, it proceeds to do complete equity.

In Shipman v. Furniss, 69 Ala. 555, 44 Am. Rep. 528, the bill was filed to cancel a deed for fraud and undue influence, and on the further ground that it was never delivered by the grantor. It was declared:

"The bill contains two distinct, independent grounds on which the claim to relief is based; and *** if either ground is sufficient, its force is not impaired by the fact that it is joined cumulatively with another alleged ground, which, of itself, will not maintain the equity of the bill." Lewis v. Alston, 184 Ala. 339, 63 So. 1008.

The issues of undue influence and mental incapacity usually arise together. Both involve the state of mind of the donor or testator. The issue of unsoundness of mind in the execution of deeds rarely arises, except in connection with some question of undue influence. The issues are triable together in all will contests at law or in equity. The parties interested, as well as the trior of fact, may easily find the deed the result of one or the other, and not be able to decide clearly on which side of the shadowy border line between mental capacity and incapacity the case falls. Equity would furnish a very inadequate remedy, if, on averment and proof of all the elements of undue influence, such as confidential relations with dominating influence, accompanied with voluntary activity in the preparation and precurement of the deed, the complainant should be turned out of court because it should at last appear the donor had, from sickness...