Floyd v. Green, 4 Div. 62.
Court | Supreme Court of Alabama |
Citation | 238 Ala. 42,188 So. 867 |
Docket Number | 4 Div. 62. |
Parties | FLOYD ET AL. v. GREEN. |
Decision Date | 04 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.
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,
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:
The more recent declaration by this Court in Dowe v. Farley et al., 206 Ala. 421, 423, 90 So. 291, 293 is:
In Kyle v. Perdue, 95 Ala. 579, 585, 588, 10 So. 103, 104, Mr. Justice Walker, for the Court declared:
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