Davis v. Weatherington
| Citation | 514 So.2d 943 |
| Parties | Rosie Lee Creech DAVIS v. James Moses WEATHERINGTON. 86-185. |
| Decision Date | 18 September 1987 |
| Court | Supreme Court of Alabama |
Malcolm R. Newman of Newman & Newman, Dothan, for appellant.
James W. Parkman III of Nomberg, McCabe & Parkman, Dothan, for appellee.
Rosie Lee Creech Davis appeals from a final judgment refusing to set aside a deed made by Davis to John Moses Weatherington, her son. We affirm.
In 1979, Davis sought to divide among her four children approximately 25 acres of land that she had inherited. Davis's attorney prepared deeds giving equal portions of that property to the four children. At the same time, Davis deeded one acre of land on which her house was located to her son, James Moses Weatherington. All the deeds were executed and witnessed in her attorney's office. Davis filed all the deeds in the probate court herself and gave Weatherington the deeds to the property that she had conveyed to him.
On April 1, 1986, Davis filed a complaint to set aside the deed conveying the house and one acre of land to Weatherington, asserting that Weatherington had obtained the deed through fraud and/or undue influence. At trial, Davis stated that she had believed she was executing a will, not a deed. On cross-examination, she stated that she recalled executing the deed but that she "meant to put on there that as long as I live I wanted to tend to it myself."
Weatherington testified that he did not ask his mother for the property but that he would like to retain it. He also stated that he did not give her any money for the property, but had helped her pay off a debt on the house and had spent $500 to $600 for repairs on the house.
Davis advanced four theories to support cancellation of the deed: (1) lack of consideration; (2) undue influence; (3) fraud; and (4) mistake.
With respect to lack of consideration, this Court has held that a deed is valid between the parties and their privies, whether or not it is founded upon consideration. Taylor v. Godsey, 357 So.2d 979 (Ala.1978).
Undue influence must be determined from the facts in each case; however, in order to prove undue influence, the plaintiff must present evidence of "influence which dominates the grantor's will and coerces it to serve the will of another." Id. at 980.
In the instant case, there was no evidence establishing acts of dominance or coercion over the will of Davis. The evidence established that Davis was living with one of her daughters at the time she conveyed the property to Weatherington; that she consulted her own attorney with respect to the deeds and filed them herself in the probate court; and that Weatherington did not accompany Davis to her attorney's office or to the probate court. We find no evidence of undue influence.
Davis asserted in her complaint that...
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