Hickey v. Anderson

• Decision Date: 08 January 1951
• Docket Number: No. 37761,37761
• Citation: 49 So.2d 713,210 Miss. 455
• Parties: HICKEY v. ANDERSON et al.
• Court: Mississippi Supreme Court

Page 713

49 So.2d 713

210 Miss. 455

HICKEY v. ANDERSON et al.

No. 37761.

Supreme Court of Mississippi, Division B.

Jan. 8, 1951.

H. T. Carter, Columbus, Guyton & Allen, Kosciusko, for appellant.

Robin Weaver, Jno. F. Frierson, Columbus, for appellees.

ETHRIDGE, Commissioner.

Appellant undertakes to set aside a deed executed by an elderly lady to the three appellees, with whom she was living, and one of whom is her niece, on the grounds of fraud and undue influence in the procurement resulting from a fiduciary relationship between the grantor and the appellees. There is also involved a question of the admissibility of certain testimony and evidence excluded by the trial court.

Mrs. Rosa Ann Burns, in 1943, had been living in Columbus, Mississippi, for many years. She was about 77 years of age. Her husband had died a number of years before and had left her several pieces of property in and around Columbus, including the house and lot here in question, which was her home. Her next of kin were a niece, Mrs. Mamie Ida Drake, who inherited one-half of her estate, and two nephews, William L. Hickey and Stockard L. Hickey, who each inherited a one-fourth part of her estate. Mrs. Drake had a daughter, Mary Louise Anderson, whose husband was Emerson T. Anderson. These three latter parties were defendants in the court below and are appellees here.

In October, 1943, Anderson's brother died, and Mrs. Burns, in preparing to go to the funeral, fell in the bathroom of her home. She was considerably injured and shaken up from the fall, and Anderson took her to the home occupied by himself, his wife, and Mrs. Drake, to recuperate. Mrs. Burns' knees swelled quite a bit, and as a result of that and other injuries she was confined to bed in the Anderson home for about a year. She was in more or less of a helpless condition during this period, she could walk only with aggistance from others, and the Andersons and Mrs. Drake took care of her. Anderson carried her back and forth to the hospital for treatments, as a result of which she was considerably improved and was able to walk about again. During the two and one-third years Mrs. Burns stayed in the Andersons' home, she rented her own home to others. Late in 1945 Mrs. Burns told Anderson, according to his testimony, that she wanted to move back to her own home, and that she wanted the Andersons to sell their place, and, with Mrs. Drake, to come and live with her. She told them that if they would live with her, she would deed her home to Mrs. Drake and the Andersons, retaining a life estate in herself. Mrs. Burns had previously executed a will in which she had devised her home to Mrs. Drake and her daughter, Mary Louise Anderson, but this will was not properly attested and therefore was not probated upon her death. By the execution of the deed subsequently referred to, she included Mr. Anderson as one of her successors in title to her home, along with Mrs. Drake and her daughter. At any rate, in December, 1945, the Andersons sold their home.

Mr. Anderson testified, as an adverse witness for the complainant, that Mrs. Burns instructed him to go to her lawyer, J. W. Loving, and to request him to prepare a deed of her home from her to Mrs. Drake and Mr. and Mrs. Anderson, reserving in Mrs. Burns a life estate. Anderson suggested an attorney who had done some work for him, but he testified that Mrs. Burns insisted on the attorney who had always looked after her own business. Anderson went alone to Loving's office, gave him the facts, and later returned and obtained the deed which Loving had drafted. He then carried it to his home, where they were still living, and gave it to Mrs. Burns, who requested Anderson to call a notary public so that she could execute the deed. Anderson testified that he was absent when the notary public arrived and the deed was executed. It was executed on January 3, 1946, and on the next day Anderson took it to the Chancery Clerk's office and filed it for recordation. Neither Anderson nor Loving recalled who paid the attorney's fee for drafting the deed. In the deed, Mrs. Burns conveyed to Emerson T. Anderson, and his wife, Mrs. Mary Louise Anderson, and Mrs. Mamie Ida Drake her home, reserving a life estate therein to herself. It stated that the consideration was the payment of $10 to the grantor, and 'other good and valuable consideration to be had and received from the said parties of the second part in the way and manner of the said parties of the second part, looking after, caring for, supporting, maintaining, and attending to the said party, in good, decent, respectable, and efficient manner * * *.'

In February, 1946, Mrs. Drake and the Andersons moved with Mrs. Burns to her old home, where they continued to live with her until her death on December 22, 1948. On June 20, 1949, William L. Hickey, a nephew and one of the heirs of Mrs. Burns, filed this action in the Chancery Court of Lowndes County against the Andersons and Mrs. Drake. The bill of complaint charged that the defendants induced Mrs. Burns to leave her home and live with them at a time when she was ill; that through duress, undue influence, and unfair pressure upon Mrs. Burns, they induced her to execute the deed of January 3, 1946; that the defendants occupied a fiduciary relationship to Mrs. Burns at the time of the execution of the deed, that she was old and weak in mind and body at that time, and was incapable of resisting such undue influence and duress, and that in violation of this fiduciary relationship the defendants wrongfully obtained said deed. The bill further charged that the defendants did not furnish the consideration agreed upon in the deed, and did not support Mrs. Burns, but in fact she used her own money for that purpose, and that the defendants took the money of Mrs. Burns and used it for their own support and otherwise dissipated it for their own purposes, and that all of these acts constituted fraud in the procurement of the deed. The charge of fraud in the bill, although not as strong and clear as it should have been, was adequate. The bill charged, in brief, the existence of a fiduciary relationship between the defendants and Mrs. Burns, the exercise of undue influence and fraud upon her, and the use of duress upon her in obtaining the deed. All of the heirs of Mrs. Burns, other than the complainant, were made defendants, and the bill asked for a cancellation of the deed and for a partition of the property by sale.

The answer of defendants denied the basic charges in the complaint, and alleged fulfillment of the consideration in the deed by defendants. It denied that there was any fiduciary relationship between defendants and Mrs. Burns, and averred that she was well able to handle her own business. By amendment, the defendants further pleaded that since the date of the deed they had made repairs and improvements on the property of the value of not less than $1,000, and alleged that one consideration for the deed was the affection which Mrs. Burns had for the defendants, and further, that because of the delay in filing this suit the complainant was estopped by laches to attempt to set the deed aside. Subsequent to the filing of the suit, William L. Hickey, the original complainant, died, and the suit was revived in the name of his wife, Mrs. Ira L. Hickey, administratrix of his estate.

The case was tried at the October, 1949, term of court, at which the complainant used seven witnesses to support its allegations, including as an adverse witness Emerson T. Anderson, one of the defendants. The defendants introduced no witnesses and moved to exclude the evidence and dismiss the bill on the ground that the testimony failed to support the allegations of the bill and to constitute a cause of action. The trial court's final decree sustained this motion and...