Gibbons v. Gibbons

• Decision Date: 20 January 1921
• Docket Number: 3 Div. 482
• Citation: Gibbons v. Gibbons, 205 Ala. 636, 88 So. 833 (Ala. 1921)
• Parties: GIBBONS et al. v. GIBBONS.
• Court: Alabama Supreme Court

88 So. 833

205 Ala. 636

GIBBONS et al. v. GIBBONS.

3 Div. 482

Supreme Court of Alabama

January 20, 1921

Rehearing Denied May 5, 1921

Appeal from Circuit Court, Autauga County; B.K. McMorris, Judge.

Bill in equity by M.A. Gibbons against Millie Gibbons and others to cancel and annul a conveyance of land. From a decree granting the relief prayed, respondents appeal. Affirmed.

W.P McGaugh, of Prattville, Eugene Ballard, of Montgomery, and C.E.O. Timmerman, of Prattville, for appellants.

Guy Rice and Gipson & Booth, all of Prattville, for appellee.

McCLELLAN J.

The decree appealed from canceled, in so far as Mrs. M.A. Gibbons (complainant-appellee) was concerned, a deed of date May 6 1916, executed by Mrs. M.A. Gibbons, along with L.W. Gibbons and Mrs. L.W. Gibbons, to R.H. Gibbons, since deceased conveying all the right, title, and interest of the grantors in 170 acres of land in Autauga county. The bill's theory is that the execution of this instrument by Mrs. M.A. Gibbons was procured by fraudulent representations of its character and effect, or by undue influence exerted upon her, by the grantee who was her son and alleged to have occupied to her, at the time and prior thereto, a relation of confidence in respect of the mother's (complainant's) affairs.

The complainant (appellee) admitted executing and acknowledging the instrument. The respondents interposed objections to those phases of complainant's testimony wherein she recited statements by the grantee, R.H. Gibbons (since deceased), directed to showing fraudulent representations by him as inducing her execution of the deed. These objections, written and filed before submission and listed in the note of testimony, should--under our statute governing the competency of witnesses, pecuniarily interested in the result of the suit, to testify to transactions with or statements by a party since deceased, to whose estate the witness has an adverse interest (Code, § 4007; 12 Mich.Ala.Dig. pp. 1171 et seq.)--have been sustained, and such testimony eliminated from consideration. Without the testimony of the complainant (appellee) relating to these alleged fraudulent misrepresentations by the grantee, the evidence remaining did not warrant a conclusion that the deed was procured by fraudulent misrepresentations by the grantee, R.H. Gibbons, as averred in the bill.

The decree of cancellation was, under the principles stated in Waddell v. Lanier, 62 Ala. 347, warranted, however, by the pleading and proof referable to the ground that, in so far as Mrs. M.A. Gibbons was concerned, the deed was the result of undue influence exerted by the grantee, her son, who occupied toward her and her affairs, at the time the instrument was executed, a relation of such peculiar confidence that the burden of proof passed to the respondents to bring forward evidence "proving satisfactorily that" the transaction was "just, fair, and equitable in every respect." Waddell v. Lanier, 62 Ala. 347, 350, 351. This acquitting burden was not discharged by the respondents. The complainant (appellee) was, at the time, aged and infirm. The grantee had for years looked after her, living near by on the farm which his father, up to 1905, and his mother (appellee), had occupied since 1890, the entire area of which is described in the deed in question. Such a complete divestiture of title or right by this aged woman--in favor of her son who occupied toward her and her affairs a relation of trust and confidence--of all she had or claimed, except a small amount of personal effects, is well calculated to subject the transaction to suspicion and to emphasize the application of the rule that, in these transactions, the innocence and fidelity of the grantee should be satisfactorily established, if the instrument is to be allowed to stand. Waddell v. Lanier, supra, among many others in its line. The decree is affirmed.

Affirmed.

ANDERSON, C.J., and SOMERVILLE and THOMAS, JJ., concur.

On Rehearing.

McCLELLAN J.

In brief supporting the application for rehearing it is insisted (for the first time) that the doctrine of McLeod v McLeod, 145 Ala. 269, 40 So. 414, 117 Am.St.Rep. 41, Hawthorne v. Jenkins, 182 Ala. 255, 260-261, 62 So. 505, Ann.Cas.1915D, 707, and Keeble v. Underwood, 193 Ala. 582, 586-589, 69 So. 493, is applicable to this cause, and that it has not been accorded appropriate, present effect in our decision that the burden of proof passed to the respondents (appellants) to show that the transaction evidenced by the deed of Mrs. M.A. Gibbons to her son, R.H. Gibbons, was "just, fair, and equitable in every respect," as declared in Waddell v. Lanier, 62 Ala. 347. The general doctrine of Waddell v. Lanier has not since been repudiated in this court; a doctrine forcefully stated, and applied to the relation of sister and brother, in Boney v. Hollingsworth, 23 Ala. 690, and since often reiterated. Its broad application has, however, been more recently restricted where the gift or transaction under inquiry evidenced a dealing between those standing in the confidential relation of parent and child and the child is the beneficiary of the bounty or act of the parent. In such circumstances the later view (illustrated in McLeod v. McLeod, 145 Ala. 269, 40 So. 414, 117 Am.St.Rep. 41, among others) is that the presumption against the transaction assailed--resultant from the relation of confidence, viz., parent and child--will not be indulged or be accorded effect unless the evidence presented, including the surrounding circumstances, conduces to show that the natural dominance of the parent (assumed from considerations referable to the normal...