Johnston v. Fondren

• Decision Date: 21 October 1920
• Docket Number: 2 Div. 718
• Citation: 204 Ala. 656,87 So. 94
• Parties: JOHNSTON et al. v. FONDREN et al.
• Court: Alabama Supreme Court

87 So. 94

204 Ala. 656

JOHNSTON et al. v. FONDREN et al.

2 Div. 718

Supreme Court of Alabama

October 21, 1920

Rehearing Denied Nov. 18, 1920

Appeal from Circuit Court, Bibb County; B.M. Miller, Judge.

Suit by Lucinda Fondren and others against Margaret Emma Johnston and others to cancel certain deeds, for an accounting, and for the sale of land for division. From a decree granting the relief prayed, respondents appeal. Reversed and remanded with directions to dismiss the bill.

Jerome T. Fuller and J.T. Ellison, both of Centerville, and W.H Wright, of West Blocton, for appellants.

Edward De Graffenried, W.J. Monette, and S.A. Moore, all of Tuscaloosa, for appellees.

McCLELLAN J.

The appellees filed this bill against appellant and others. It was designed to cancel a deed purporting to have been executed on November 2, 1917, by J.P. Fondren, since deceased, by his mark, to his sister, Margaret Emma Johnston one of the appellants, the cancellation of deeds subsequently executed by Mrs. Johnston to coappellants, conveying separately the lands described in the Fondren deed and the standing timber thereon whereupon a sale of the land for division among the joint owners thereof and an accounting by those who appropriated the timber after its conveyance by Mrs. Johnston are prayed. It is averred that at the time J.P Fondren undertook to execute the deed to his sister, Mrs. Johnston, he was mentally incapable of effectually executing the conveyance; but, if he was found capable of executing a valid conveyance at that time, the effort to effect this conveyance was abortive because of undue influence exerted upon Fondren by Mrs. Johnston and Jesse and Willa Wright, or either, to the end that they might secure to themselves, or either of them, the land and timber owned by J.P. Fondren. Fondren had never been married. He was miserly in character and habit. He was penurious to an extreme degree. Up to a short time before his death in late November, 1917, he held to the notion that he must keep his land and timber, his own pressing necessities not being sufficient to change his purpose in this regard. He denied himself the necessities of life. He lived, at least during the last months of his life, in the utmost squalor. He had few associates. He lived alone. He was a silent man, not given to much speaking. His kindred rarely, if ever, visited him or he them. Disease, probably tuberculosis, so weakened him that for some weeks before his death he was very feeble, hardly able to raise himself in bed. Before this his enfeebled condition made it difficult for him to walk or stand. As his weakness progressed, he seemed to have become more silent. About the first part of November, 1917, or the latter days of October, his condition became known to people in the neighborhood where he lived. His sister, Mrs. Johnston, was sent for or brought to his dwelling to serve him; and Jesse Wright and his wife--the former an illegitimate son of another of Fondren's sisters--came there and, along with Mrs. Johnston, nursed him until his death some three weeks later. These alone of his relatives gave him the necessary personal attention, though another relation testified that he went to see Fondren and offered money or assistance or both; but those in charge did not avail of the offer.

The testimony upon the issues of the mental incapacity of J.P Fondren and of undue influence, in respect of the deed to Mrs. Johnston, was taken by deposition, not on examination before the trial court. The review on those issues is therefore de novo in this...