Fant v. Fant

• Citation: 173 Miss. 472,162 So. 159
• Decision Date: 10 June 1935
• Docket Number: 31702
• Court: United States State Supreme Court of Mississippi
• Parties: FANT et al. v. FANT et al

162 So. 159

173 Miss. 472

FANT et al. v. FANT et al

No. 31702

Supreme Court of Mississippi

June 10, 1935

Division A

1 EQUITY.

Defendant must swear to his answer on knowledge, and not merely on information and belief, to obtain benefit of rule requiring two witnesses or one witness and corroborating circumstances to overthrow denial in answer.

2 EQUITY.

Statute abolishing rule requiring two witnesses or one witness and corroborating circumstances to overthrow denial in answer where bill is "sworn to" requires positive oath by complainant on knowledge and not on mere information and belief (Code 1930, sec. 383).

3 EQUITY.

Affidavit of complainant stating that allegations of bill were true "to the best of her knowledge, information and belief" held insufficient to come within statute abolishing requirement of two witnesses or one witness and corroborating circumstances to overthrow denial in answer where bill is "sworn to" (Code 1930. sec. 383).

4. EQUITY.

That defendants were incompetent witnesses in their own behalf under statute relative to testimony in support of claims against estates of deceased persons did not alter effect of their sworn answer responsive to bill (Code 1930, sec. 1529).

5. WITNESSES.

Complainants, by compelling defendants to testify, waived defendants' statutory incompetency as witnesses.

6. DEEDS.

In suit to cancel deeds, prima facie case of fraud is made by proof of existence of confidential relation between grantor and grantee.

7. EQUITY.

In suit to cancel deeds, burden of overcoming presumption of fraud arising from confidential relation between grantor and grantee was met by defendants' oath to answer denying undue influence, and complainants, who required oath to answer and did not swear to truth of bill on knowledge, had burden to overcome denial by two witnesses or one witness and corroborating circumstances (Code 1930, sec. 383).

HON. N. R. SLEDGE, Chancellor.

APPEAL from the chancery court of Marshall county HON. N. R. SLEDGE, Chancellor.

Suit by Miss Lucy T. Fant and others against Lester G. Fant, Sr., and another. Decree for defendants, and complainants appeal. Affirmed.

Affirmed.

Sylvanus W. Polk, of Memphis, Tennessee, for appellants.

The term, fiduciary relation, is a broad one and is not limited to the conventional fiduciary relations of attorney and client, guardian and ward, principal and agent, but extends to every intimate and confidential relation, and may be only moral, social, domestic, or merely personal.

Bourn v. Bourn, 140 So. 518, 163 Miss. 71; Ham v. Ham, 146 Miss. 141 110 So. 583; Meek & Thornton v. Perry, 36 Miss. 190; Hitt v. Terry, 92 Miss. 710, 46 So. 829; Norfleet v. Beall, 82 Miss. 538, 34 So. 382.

A deed from a grantor to a grantee between whom there is a fiduciary relation, is presumed to be invalid, fraudulent, and void; and the burden of overcoming the presumption is on the person claiming under the deed.

Watkins v. Martin, 167 Miss. 343, 147 So. 652; Bourn v. Bourn, 163 Miss. 71, 140 So. 518; Ham v. Ham, 146 Miss. 141, 110 So. 583; Hitt v. Terry, 92 Miss. 710, 46 So. 829; Norfleet v. Beall, 82 Miss. 538, 34 So. 328; Meek & Thornton v. Perry, 36 Miss. 190; Plant v. Plant, 76 Miss. 560.

Absolute fairness, good faith, full knowledge, and independent consent and action must be clearly proven, and the only way independent consent and action can be clearly proven is by showing that the grantor acted on the advice of a competent person disconnected from the grantee and devoted wholly to the grantor's interest.

Ham v. Ham, 146 Miss. 141, 110 So. 583; Watkins v. Martin, 167 Miss. 343, 147 So. 652; Bourn v. Bourn, 163 Miss. 71, 140 So. 518.

Where an aged, and feeble person, even though not totally disqualified, makes a conveyance to a person who is her mental superior for a grossly inadequate consideration, or none at all, fraud is inferred, and the heirs of the grantor are entitled to have the instrument cancelled, unless the presumption is overcome by clear evidence of good faith, full knowledge, and independent consent and action.

Caulk v. Burt, 114 Miss. 487, 75 So. 369; Leech v. Hirshman, 90 Miss. 723, 44 So. 33; Clark v. Lopez, 75 Miss. 932, 23 So. 648.

A deed drawn and obtained by a parent who stands in a fiduciary relation to the grantor, to his son, law partner and business associate, is as presumably fraudulent as if made to the parent.

Beeson v. Smith, 149 N.C. 142, 63 S.E. 888; Rankin v. Rankin, 134 S.W. 392.

The relation of attorney and client is not dependent upon the payment of a fee, and exists where the services of a lawyer are used and accepted, even though there is no definite agreement between the parties, or even though the services are rendered gratuitously.

Jones Bayou Drainage District v. Sillers, 129 Miss. 13, 91 So. 693; Packard v. Delfel, 9 Wash. 562, 38 P. 208.

It is proper to permit a non-expert witness to give in testimony an opinion as to soundness of mind only if said opinion is based on the facts testified to by the witness.

Shehan v. Kerney, 80 Miss. 688, 21 So. 41; Woods v. State, 58 Miss. 741.

A deed of gift prepared and obtained by a parent, who stands in a confidential relation to an aged and feeble minded woman, conveying a large portion of her property to his son, law partner and business associate is presumed to be as fraudulent as if the deed had been made direct to the parent, although the son had no knowledge of it until after the deed was executed, and there was no direct confidential relation between the donor and the son.

Meek & Thornton v. Perry, 36 Miss. 190; Huguenin v. Beasley, 14 Ves. 275, 33 Eng. Rpts. 526; Addis v. Grange, 358 Ill. 127, 192 N.E. 774; Schrader v. Schrader, 298 Ill. 469, 131 N.E. 602; Dowie v. Driscoll, 203 Ill. 480, 68 N.E. 56; Spiva v. Boyd, 206 Ala. 536, 90 So. 289; Douglas v. Spear, 97 N.J.Eq. 25, 129 A. 128; Beeson v. Smith, 149 N.C. 142, 62 S.E. 888; Black v. Blaylees, 86 N.C. 527; Harris v. Delamar, 38 N.C. 219; Stege v. Stege, Trustee, 237 Ky. 197, 35 S.W.2d 324; Graziano v. Lanuto, 97 N.J.Eq. 182, 127 A. 109; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Simonton v. Bacon, 49 Miss. 582; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Boswell v. Boswell, 20 Ky. Law Rep. 118, 45 S.W. 454; Thweatt v. Freeman, 73 Ark. 575, 84 S.W. 720; Young v. Murphy, 120 Wis. 49, 97 N.W. 496; Teegarden v. Restine, 57 Ind.App. 158, 106 N.E. 641; Simmons v. Jennings, 60 Miss. 886.

Smith & Smith, of Holly Springs, for appellees.

The term "fiduciary" is well defined in the cases quoted by counsel, but only one of them is involved in this litigation, because only one of them is the predicate of the complaint of the appellants, the conventional one of attorney and client. The issues on appeal cannot be different from those tried in the lower court.

Vicksburg Mfg., etc., Co. v. Jaffray Const. Co., 94 Miss. 282, 49 So. 116; Ferguson v. Appelwhite, 10 S. & M. 301.

The burden of proof is upon one who claims the invalidity of a deed, because of confidential relations, to establish such relations.

18 C. J. 424, sec. 503; Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41.

Our court has laid down the rule that the decree of a chancery court upon controverted facts is analagous to a verdict, and will not be disturbed unless shown to be opposed to the preponderance of the testimony.

Apple v. Ganong, 47 Miss. 189; Coffee v. Coffee, 24 So. 962; Kansas City, etc., R. Co. v. Doggett, 67 Miss. 250, 7 So. 278.

Where all the facts and circumstances of a situation or event are fully and completely developed by the evidence, the statutory or other presumption cannot be relied upon.

St. Louis San Francisco Ry. Co. v. Nichols, 161 Miss, 795, 138 So. 364; Batiste v. State, 147 So. 318, 165 Miss. 161.

A client is one who applies to a lawyer or counselor for advice and direction in a question of law or commits his cause to his management in prosecuting a claim or defending against a suit in a court of justice. Not one of these elements appears in the record in this case.

McCreary, Executor v. Hoops, 25. Miss. 428; Hudson v. Kimbrough, 74 Miss. 341, 20 So. 885.

If the position of appellants as to this relationship is sustained, the members of the legal fraternity will be segregated into a class denied the ordinary impulses of kindness and voluntary favors to their kin-people, merely because they are lawyers.

Stoute v. Smith, 98 N.Y. 25, 50 Am. Rep. 632.

The acts of the two notaries in taking the acknowledgments of Miss Fant were judicial or quasi judicial and their acknowledgments were judicial or quasi judicial acts.

Wasson, Admr. v. Conner, Trustee, 54 Miss. 351; Cotten v. McKinzie, 57 Miss. 418; Tyson v. Utterback, 122 So. 499.

Counsel states that section 1536 of the Mississippi 1930 Code provides that the communications made to a physician or surgeon are privileged but does not provide that the knowledge of a layman, regardless of how it may be obtained, is privileged. The statute provides who may waive it and it does not provide that a witness may waive it, nor does it provide that violation of the hearsay rule may be permitted by the court to waive it. It cannot even be waived by the heirs, executors, or administrators of the decedent.

McCaw v. Turner, 126 Miss. 260, 88 So. 705; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115. So. 555.

Miss Fant had a right, being of sound mind, to execute these deeds without any consideration.

Longmyer v. Myer, 86 So. 753, 124 Miss. 77.

And she could do so from any motive, whether it be love, gratitude, partiality, prejudice, whim, or caprice.

Burnett v. Smith, 47 So. 117, 93 Miss. 566.

The answers of the appellees are of material benefit to the court in this case, having been...