Devlin v. Devlin

• Decision Date: 11 July 1911
• Citation: 71 S.E. 966,89 S.C. 268
• Parties: DEVLIN et al. v. DEVLIN et al.
• Court: South Carolina Supreme Court

71 S.E. 966

89 S.C. 268

DEVLIN et al. v. DEVLIN et al.

Supreme Court of South Carolina

July 11, 1911

Appeal from Common Pleas Circuit Court of Abbeville County; C. C Featherstone, Special Judge.

"To be officially reported."

Action by W. P. Devlin and another against R. H. Devlin and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Wm. N Graydon and D. H. Magill, for appellants. F. B. Gary, Wm. P Greene, and Grier & Park, for respondents.

HYDRICK J.

This action was brought for the partition of two tracts of land among the heirs of Sallie M. Devlin, and involves the validity of two deeds, alleged by the defendant R. H. Devlin, to have been executed and delivered to him by Sallie M. Devlin, on March 31, 1905, 10 days before her death, which occurred April 10, 1905, under which he claims to be the sole owner of both tracts. Plaintiffs allege that these deeds were never in fact executed and delivered; but if so, that they were obtained by fraud and undue influence practiced upon the grantor by the grantee. The verdict and judgment were in favor of plaintiffs.

Sallie M. Devlin was an unmarried woman, between 65 and 70 years of age. For many years she lived on one of the tracts in dispute, near her brother, the defendant R. H. Devlin. She had confidence in him and trusted him to a considerable extent with the management of her affairs, in which he was her general adviser and often acted as her agent. She was fond of him and of his family. He in turn was kind to her and considerate of her and her interests, and devoted much of his time to looking after her welfare and business. Some of the witnesses said that she always spoke of him in terms of affection, and said that he was her sole dependence, and that she intended for him and his family to have her property. The testimony tends to show that the same cordial relations did not exist between her and her only other brother, the plaintiff W. P. Devlin, though the relations between them were not exactly unfriendly. The relations between her and one or more of her sisters, while not unfriendly, were a little cool. She seemed ordinarily fond of her other sisters, and more fond of the youngest than of any of the others. She was in failing health for a year, or perhaps longer, before she died. Her decline was most marked and rapid after the first of the year 1905. From that time till her death, she was almost continually under the care of a physician. At times she suffered intense physical pain, which for the time unnerved her, and for which morphine was occasionally administered, though there was no evidence that she was under the influence of that drug when the deeds were executed. Some of the plaintiffs testified that defendant had such influence over her; that when he was present she treated them indifferently, while she treated them affectionately when he was not present.

The deeds bear date January 5, 1905, although, according to the testimony of defendant's witnesses, they were not actually executed until March 31, 1905. The defendant's son, who drew them, testified that they were antedated according to the direction of the grantor, because she said she had given the land to the defendant on that day. The consideration expressed is $600 for the 86-acre tract, and $2,500 for the 370-acre tract. There was testimony that they were worth twice that amount. Defendant admits that no consideration was in fact paid, other than the kindness which he had previously shown to his sister, and the time and attention which he had devoted to her and her affairs. The deeds were drawn by one of defendant's sons and witnessed by two others, one of whom was grantor's physician, then paying her a professional visit, and, according to their testimony, there was no one present when they were executed, except the grantor and grantee and members of his family, and a negro girl, who was a servant of the grantor. There was testimony that the grantee's son, who drew the deeds, left his aunt's house on the night of March 30th, accompanied by a negro, and went to his home in Verdery, several miles distant, where he procured blanks and prepared the deeds and sent them back to his aunt's by the negro, who arrived there between 2 and 3 o'clock that night.

On the morning after the funeral, defendant left his home at daylight and drove 10 miles to Abbeville, arriving there a little after sunrise, and went to the residence of his attorney to consult him about the deeds, the existence of which had not been made known to any one outside of his immediate family, notwithstanding inquiries had been made of him by his brother and several of his sisters as to what disposition their sister Sallie had made of her property. They were not informed of the deeds, until they were spread upon the records, on April 19, 1905. In response to their inquiries, he told them that he paid her the consideration expressed in the deeds. On being asked what she had done with the money, he said it might be in bank somewhere, or it might be sewed up in a featherbed, or she might have given it to his sons. The evidence contains a good many other circumstances which are relied upon by the plaintiffs to show fraud and undue influence, but the foregoing statement of it is sufficient to show clearly that there was no error in refusing defendant's motion for nonsuit and for the direction of a verdict in his favor, made upon the...