Dillard v. Hovater, 8 Div. 544

• Court: Supreme Court of Alabama
• Citation: 254 Ala. 616,49 So.2d 151
• Docket Number: 8 Div. 544
• Parties: DILLARD et al. v. HOVATER et al.
• Decision Date: 19 October 1950

Page 151

49 So.2d 151 254 Ala. 616 DILLARD et al.
v.
HOVATER et al. 8 Div. 544. Supreme Court of Alabama. Oct. 19, 1950.
Rehearing Denied Dec. 14, 1950.

[254 Ala. 617] T. K. Selman and R. L. Newton, of Jasper, for appellants.

Guin & Guin, of Russellville, for appellees.

[254 Ala. 618] LAWSON, Justice.

This case has been here before on an appeal by the complainants from an adverse decree of the circuit court of Franklin County, in equity. We reversed and remanded for further proceedings, with leave to complainants to amend. Dillard et al. v. Hovater et al., 252 Ala. 62, 39 So.2d 386.

Page 152

After remandment, complainants amended their bill so as to make it one to cancel three deeds on the sole ground of undue influence and to have the lands covered by the deeds sold for division among the complainants and respondents who, the bill alleges, are the alleged joint owners and tenants in common of the property.

Any right to have the lands sold for division depended upon a decree cancelling the deeds, for unless the deeds are invalidated neither the complainants nor any of the respondents except the respondent who is the grantee in the deeds have any legal interest in the property.

The trial court refused to cancel the deeds and from that decree the complainants have appealed to this court.

J. F. Dillard, late a citizen of Franklin County, died intestate in that county on or about December 27, 1943, at the age of eighty-two years. He left surviving him three sons and four daughters. His wife predeceased him by more than twenty years. She died November 26, 1922.

On December 29, 1936, J. F. Dillard executed a deed to his daughter, Mamie Dillard, conveying to the latter the home place, in Russellville, consisting of approximately seven and two-fifths acres, upon which was located the family dwelling and four or five small houses which were rented out. This deed was recorded in the office of the judge of probate of Franklin County on January 5, 1937.

On July 20, 1937, J. F. Dillard executed another deed to his daughter Mamie conveying to her four unimproved lots in the town of Russellville. This deed was recorded on November 29, 1943.

J. F. Dillard executed another deed to his daughter Mamie conveying to her approximately 260 acres of land in Colbert County. This deed was executed on October 5, 1938, and recorded August 20, 1940.

On January 21, 1944, within a very short time after the death of J. F. Dillard, this bill was filed to cancel the three deeds. It was filed by four of the surviving children against the other three. The complainants were Walter Dillard, Lela Dillard Byrd, Myrtle Dillard Nix, and Mattie Dillard Byrd. The respondents were Mamie Dillard Hovater, the grantee in the aforementioned deeds, Charles F. Dillard, and William Harrison Dillard. After the bill was filed the complainant Mattie Dillard Byrd died and as to her interest there has been a revivor. Mamie Dillard, the grantee in the deeds, was married to Roe Hovater on January 10, 1942.

The complainants in the court below seek to invoke the doctrine that in transactions inter vivos, where the parties stand in confidential relations, and the grantee, who is the beneficiary, is the dominant spirit in the transaction, the law raises the presumption of undue influence and casts upon the opposite party the burden of repelling such presumption by satisfactory evidence whenever the transaction is assailed. McLeod et al. v. McLeod, 145 Ala. 269, 40 So. 414.

The relationship of parent and child is confidential. Worsham v. Johnson, 231 Ala. 265, 164 So. 381; Gibbons et al. v. Gibbons, 205 Ala. 636, 88 So. 833; Tipton et al. v....