Fortune v. Boutwell, 4 Div. 8

• Decision Date: 17 November 1960
• Docket Number: 4 Div. 8
• Citation: 271 Ala. 592,126 So.2d 116
• Parties: Joel D. FORTUNE et al. v. J. C. BOUTWELL et al.
• Court: Alabama Supreme Court

Page 116

126 So.2d 116

271 Ala. 592

Joel D. FORTUNE et al. v. J. C. BOUTWELL et al.

4 Div. 8.

Supreme Court of Alabama.

Nov. 17, 1960.

Rehearing Denied Jan. 26, 1961.

Alice L. Anderson, Enterprise, for appellants.

Robt. B. Albritton, Andalusia, and B. B. Rowe, Enterprise, for appellees.

SIMPSON, Justice.

Appellants filed their bill of complaint in the Circuit Court of Coffee County, Alabama, in Equity, which sought to set aside a deed made by Mrs. Lonnie Fortune to J. C. Boutwell and Shelby Boutwell on July 24, 1956, on an allegation which claimed undue influence and lack of mental capacity of the grantor to convey land. Respondents, appellees, filed a cross bill asking for an affirmative decision that the deed was and is a proper deed of conveyance; that the legal title to the land in question is in J. C. Boutwell and Shelby Boutwell and for an injunction enjoining complainants from interfering with the use and possession of Mrs. Lonnie Fortune to the other lands owned by the grantor. Mrs. Lonnie Fortune, after being allowed by the court to intervene, joined in this cross bill. Subsequently, and before final decree, she died and the cause, as to her, was revived in the name of her personal representative.

Factually, the case presents the following: Mrs. Lonnie Fortune, the grantor, had been twice married and had two sets of children. Her first marriage when she was very young was to Calvin Boutwell. To this marriage there were born three children, one of whom is dead, leaving J. C. Boutwell and Shelby Boutwell, the appellees. Prior to his death, Calvin Boutwell deeded to Mrs. Lonnie Fortune, his then wife, 280 acres of land, which is the subject of this suit. After Boutwell's death, Mrs. Lonnie Fortune, grantor in the deed in question, married Andrew Fortune. To this last marriage there were several children born, all of whom are complainants, appellants here. After the marriage to Fortune, Mrs. Lonnie Fortune retained ownership of and lived on the land deeded her by her first husband. During her second marriage Mrs. Fortune's second husband, Andrew Fortune, acquired ownership of 40 acres of land, which was owned by him at his death. Upon the division of the estate of Stephen Smith, Mrs. Lonnie Fortune's father, Mrs. Fortune received as her part of the estate, 55 acres of land which was known as the 'Smith land' and which was owned by Mrs. Fortune at the time of her death on November 6, 1957. Mrs. Fortune continued to live with Andrew Fortune from the time of their marriage until his death on May 30, 1956.

On July 24, 1956, Mrs. Lonnie Fortune executed a deed to J. C. Boutwell and Shelby Boutwell, who were the living children of her first husband, Calvin Boutwell, to the 280 acres deeded her by her said husband prior to his death. These grantees were Boutwell's children. It is this deed which complainants, appellants, are seeking to have set aside and declared void.

The testimony was heard by the court ore tenus and upon final submission a decree was entered, from which we quote:

'On due consideration of all the testimony, it is the opinion of the Court that the relief prayed by the complainants should be denied. It is true that at the time the deed in question was made, Mrs. Fortune was, to-wit, 83 years of age, had no education, was almost totally blind, hard of hearing, and was feeble in body, but this Court is convinced that she was far from being mentally incapable; she knew what she was doing in making the deed to the Boutwells and did exactly, in this Court's opinion, what she wanted to do, which was to deed the Boutwell children the land left by their father. Prior to making the deed, and up to the day before, she discussed with disinterested people the matter, and related her intention to deed to the Boutwell children the Boutwell land. On the day before the transaction she discussed the matter with her family physician and told him what she wanted to do and what she was going to do. In the opinion of the Court, the evidence is not sufficient to establish undue influence under the facts in question that would set the deed aside. It is further the opinion of the Court that the land involved in the deed and described in the bill of complaint is the property of J. C. Boutwell and Shelby Boutwell, and that no other person has any right therein, including these complainants, and that the complainants should be permanently enjoined from interfering with or molesting the title, possession or ownership of J. C. Boutwell and Shelby Boutwell in the land.'

It is from this decree that the complainants appeal, on the ground that the same is contrary to the evidence, and the law in the case.

The law with regard to mental incapacity to avoid a conveyance of land is well settled. We have stated the governing principle in varying language: Incapacity to understand the business transacted, as distinguished from mere sickness, must be proved in order to avoid a conveyance. Stanfill v. Johnson, 159 Ala. 546, 49 So. 223. A person with sufficient mental ability to comprehend what he is doing and understand the nature of the act and its consequences has capacity to make a deed. Frederic v. Wilkins, 182 Ala. 343, 62 So. 518; Harris v. Bowles, 208 Ala. 545...