Floyd v. Green, 4 Div. 62.

CourtSupreme Court of Alabama
Citation238 Ala. 42,188 So. 867
Docket Number4 Div. 62.
PartiesFLOYD ET AL. v. GREEN.
Decision Date04 May 1939

Rehearing Denied May 25, 1939.

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

Bill to cancel a deed and to sell lands for division by T. J. Floyd and others against Mrs. N.E. Green and others. From a decree denying relief, complainants appeal.

Reversed and rendered.

p>Page Chauncey Sparks, of Eufaula, and E. W. Norton, of Clayton, for appellants.

Crews Johnston, of Clayton, for appellee.

THOMAS Justice.

There is but one issue in this case, and that is, should the deed involved be cancelled or not. If it is cancelled, then the other prayers of the bill, namely, sale of the property and distribution of the proceeds because of the fact that the property cannot be equitably divided, would be granted as of course. It was admitted by the appellees, Mrs. N.E. Green and Sam Caraway that the property cannot be equitably divided and that the persons named as complainants and respondents below are the ones entitled to a distribution of the proceeds. They further admit that Chauncey Sparks and E. W Norton have been employed by the complainants below, and that their services are in connection with the whole estate.

The appellants, who are next of kin and beneficiaries under the will of Ann F. Thomas, deceased, filed their bill of complaint, seeking to set aside a deed of conveyance executed by their testatrix, to Mrs. N.E. Green, one of the appellees. It is averred that Mrs. Thomas was a very aged woman approaching eighty-seven years of age, in very bad physical condition, and of very weak mentality, owing to her enfeebled condition. She was a widow, had no children nor grandchildren, no brothers or sisters, except Mrs. N.E. Green; that she was helpless and unable to look after herself, and while in such condition entered the home of the appellee, Mrs. Green, at the request of the said Ann F. Thomas, who was seeking a home of refuge and rest during the last few days of her life; that she had no mental resistance while in the enfeebled condition both mentally and physically, and while a guest in the home of her said sister, she was imposed upon by the sister and was induced to execute the deed herein referred to, and which was attached as an exhibit to the bill of complaint, for an inadequate consideration and upon the appearance of a gift.

In event of recovery, under the foregoing admissions of fact, the attorneys' fee claimed is within the rule of our recent decisions. Wood et al. v. Amos, 236 Ala. 477, 183 So. 639; Frazer v. First National Bank of Mobile, 235 Ala. 252, 178 So. 441.

The evidence was given by oral examination before the register and not before the court rendering the decree, and therefore, is not supported by the presumption of verity which obtains. Hodge v. Joy, 207 Ala. 198, 92 So. 171; May v. Hillman et al., Ala.Sup., 187 So. 864.

In Walling v. Thomas et al., 133 Ala. 426, 430, 31 So. 982, 983, the authorities are collected to the effect that, "A conveyance of lands, obtained for a grossly inadequate consideration, by unfair advantage taken of great mental weakness, though not amounting to absolute incapacity, of the grantor, will, in equity, be set aside, on equitable terms, when application therefor is made seasonably by the grantor, his representatives or heirs. Waddell v. Lanier, 62 Ala. [ 347] 349; Shipman v. Furniss, 69 Ala. [ 555] 562, 44 Am.Rep. 528; Burke v. Taylor, 94 Ala. 530, 10 So. 129; Allore v. Jewell, 94 U.S. 506, 24 L.Ed. 260; Harding v. Handy, 11 Wheat. [ (U.S.), 103] 125, 6 L.Ed. 429; Raymond v. Wathen, 142 Ind. 367, 41 N.E. 815; 18 Enc.Pl. & Prac., 765, 771. In such case, the deed, being voidable only, and not wholly void, passes title to the grantee, and the heirs' claim to relief rests not on legal succession to the title, but on an equitable right to be invested with such succession. The relief appropriate to be afforded by the courts is by enforcing rescission of the contract of sale, and cancellation of the deed."

To like effect are the recent decisions in this court and in other jurisdictions. Kirby v. Arnold, 191 Ala. 263, 68 So. 17; Pool v. Menefee, 205 Ala. 531, 88 So. 654; Strickland v. Strickland, 206 Ala. 452, 90 So. 345; L.R.A.1916D, 388 note; 2 A.L.R. 432-note; 2 A.L.R. 449-note.

As to just what constitutes undue influence depends on the facts and circumstances of each individual case. Pilcher v. Surles, 202 Ala. 643, 81 So. 585; Barkley v. Boyd, 211 Ala. 50, 99 So. 196.

There are certain principles that are established, illustrated and well stated as follows:

In the case of Hutcheson v. Bibb et al., etc., 142 Ala. 586, 38 So. 754, it is declared:

"* * * 'Undue influence with respect to gifts and conveyances inter vivos is a very different matter. It may exist without either coercion or fraud. It may result entirely from the confidential relation, without activity in the direction of either coercion or fraud, on the part of the beneficiary occupying the position of dominant influence. It is upon him not only to abstain from deceit and duress, but to affirmatively guard the interests of the weaker party, so that their dealing may be upon a plane of equality and at arm's length. To presume undue influence in such a case, therefore, is not to presume fraud or coercion, or any act which is malum in se, but simply the continuance of the influence which naturally inheres in and attaches to the relation itself.' The doctrine is that, in addition to the relations between the testator and the beneficiary under the will, in order to put the burden of upholding the validity of the will upon the beneficiary, when assailed on the ground of undue influence, there must be some evidence of coercion in its execution, or, in other words, that the will is not the will of the testator. This may be done by showing that the person who is the principal or a large beneficiary under the will actively participated in the preparation or execution of the will. McQueen v. Wilson, 131 Ala. 606, 31 So. 94.
"The rule in such cases is based upon grounds of public policy, and was never intended to deprive one of the right of a voluntary and untrammeled disposition of his own property, but rather to guard and protect that right. It is in effect a rule of evidence, putting upon the dominant party in confidential relations, claiming a benefit under the transaction, the burden and duty of rebutting and overcoming the prima facie case so made by the presumptions which the law raises. * * *."

This rule has long prevailed. Justice Goldthwaite said in Boney et al. v. Hollingsworth et al., 23 Ala. 690, 698 and 700, that,

"There is also another, and a very comprehensive class of cases, in which equity looks to the peculiar situation which the parties occupy towards each other, and if one occupies a relation from which an unusual degree of confidence, affection, or sense of duty naturally springs, the utmost degree (uberrima fides) is demanded.--Story's Eq. § 218; and when this relation does exist, says Judge Story, courts of equity acting upon this superinduced ground, in aid of general morals, will not suffer one party, standing in a situation of which he can avail himself against the other, to derive advantage from that circumstance; for it is founded in a breach of confidence.--Story's Eq. § 308.
"* * * taking into consideration the position they occupy towards Mrs. Hollingsworth, we think that proof of the mere execution or ratification of the deed, so far as she is concerned, is not sufficient to sustain it. Until some inducement is shown, the law must always regard with suspicion an act by which a sister divests herself of a valuable interest in favor of a brother. There may be no fraud; everything may be honest and fair; but until the act is satisfactorily accounted for, the inference of fraud, artifice or abuse of confidence, is so strong, that we think equity should always relieve against it.
"In the present case, the ties of affection and confidence resulting from the near relation of the parties, it is reasonable to suppose, were drawn closer by the recent bereavement common to both, and by the fact that the sister was a widow. Unless, therefore, a sufficient inducement is shown, the deed must be set aside as to Mrs. Hollingsworth."

The more recent declaration by this Court in Dowe v. Farley et al., 206 Ala. 421, 423, 90 So. 291, 293 is: "That the son was the dominant party under the evidence in this cause cannot admit of doubt. The burden was upon him to show the transaction was fair, just, and equitable in every respect. It needs no discussion to disclose that this burden has not been discharged. This feature of the decree is therefore free from error."

In Kyle v. Perdue, 95 Ala. 579, 585, 588, 10 So. 103, 104, Mr. Justice Walker, for the Court declared:

"There are well-established rules to be applied in passing upon transactions between persons whose relations are such as to suggest that in dealings between them confidence is reposed and accepted to such an extent that one of them is subject to the influence or ascendency of the other. When such a relationship is shown to exist, if the one who was in a position to exert the influence claims the benefit of a contract with the person bestowing the confidence, the burden is cast upon the former to show affirmatively that the influence of his position was not unduly exerted; that the utmost good faith was exercised; and that all was fair, open, voluntary, and well understood. This rule as to the burden of proof is of familiar application to contracts by which benefits are conferred by a cestui que trust upon his trustee, by a ward upon his guardian, by a child upon his parent, by a client upon his
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