Holmes v. Riley

• Decision Date: 06 June 1940
• Docket Number: 6 Div. 644.
• Citation: 196 So. 888,240 Ala. 96
• Parties: HOLMES v. RILEY ET AL.
• Court: Alabama Supreme Court

196 So. 888

240 Ala. 96

HOLMES v. RILEY ET AL.

6 Div. 644.

Supreme Court of Alabama

June 6, 1940

Rehearing Denied June 29, 1940.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Bill in equity by Lillian Merrymon Riley, Della Merrymon Worthington James C. Merrymon and Robert Belton Merrymon against Lula Merrymon Holmes (all children of B. F. Merrymon, deceased) to cancel a deed to real property, and to sell the property for distribution of the proceeds, or, in the alternative, to reform the deed and impress a trust upon a portion of the property. From a decree overruling a demurrer to the bill respondent appeals.

Affirmed.

C. H. Penick, Reuben H. Wright, and Ward W. McFarland, all of Tuscaloosa, for appellant.

DeGraffenreid & McDuffie, of Tuscaloosa, for appellees.

BROWN Justice.

This appeal is from an interlocutory decree of the circuit court, sitting in equity, overruling the defendant's demurrer to the bill, as last amended, filed by appellees as heirs at law of B. F. Merrymon, deceased, against Merrymon's grantee, his daughter, in a deed executed by him February 26, 1937, conveying to her real property situated in Tuscaloosa County.

In one aspect the bill seeks a cancellation of the deed, a sale of the property for distribution of the proceeds of such sale to the heirs at law of Merrymon as their interest may be fixed by the statutes of descent and distribution. In another aspect the bill seeks a reformation of the deed so as to leave the title to the dwelling house in which the defendant was living at the time said deed was made to her, and impress the other property with a trust in favor of the complainants.

The demurrer takes the point that the bill does not aver that the complainants and the respondent are all the heirs at law; that the complainants have an adequate remedy at law; that it does not allege that the complainants are in possession, and does not allege that the deed did not give effect to the purpose and intention of the parties through mutual mistake, and others, too numerous to mention.

The bill, as originally filed, alleges that at the time of the execution of the deed "the said B. F. Merrymon was mentally unbalanced, his min [mind] was diseased, he was suffering from cancer, he was feeble minded, or he was insane, and * * * was unable to comprehend what he was doing when he signed said conveyance, and was unable to comprehend or understand the nature of his said acts in so doing. That fraud was exerted by the said Lula Merrymon Holmes, prior to and on the date of the execution of said conveyance; that the said B. F. Merrymon had been suffering from cancer for a long perior [period] of time prior to the execution of said conveyance and was a dope addict, or morphine addict, at the time of the execution of said conveyance, and was under the influence of narcotics or other drugs, at the time said conveyance was executed. That there was no consideration for the execution of said conveyance. * * * That at the time of the execution and delivery of said conveyance the said B. F. Merrymon was too blind to read, was deaf and could not hear, and was not mentally and physically well enough to understand what he was doing. That if the said B. F. Merrymon had any idea at all that he was signing any kind of conveyance, or any kind of paper, that it was his intention, if he intended to convey any property at all to the said respondent Lula Merrymon Holmes, to convey to her, either by will or deed, the dwelling house which she had resided upon since moving upon said property as above stated, and no other property was intended to be conveyed therein."

The bill was amended by adding the following averments:

"That Lula Merrymon Holmes, with knowledge of the condition of B. F. Merrymon as hereinbefore set out, did fraudulently induce B. F. Merrymon to sign the deed or conveyance of the said property, by representing to the said B. F. Merrymon that he was signing his will, when in fact he was signing said deed of conveyance. Complainants further allege that at the time the said B. F. Merrymon signed said deed or conveyance he could not read the said instrument and the said Lula Merrymon Holmes knew this fact, and falsely represented to him the contents and purpose of said instrument and the said B. F. Merrymon was fraudulently induced by Lula Merrymon Holmes to sign said instrument.

"Complainants further allege that Lula Merrymon Holmes, used and exerted undue influence on the said B. F. Merrymon, to get him to sign said deed or conveyance. The said B. F. Merrymon was old, sick, weak, and diseased and the said Lula Merrymon Holmes was present with him much of the time, nursed him, attended to his wants, and was in confidential relationship with him. Complainants allege that the said Lula Merrymon Holmes while in this confidential relationship with

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