King v. King, 8 Div. 72.

• Decision Date: 09 October 1941
• Docket Number: 8 Div. 72.
• Citation: 242 Ala. 53,4 So.2d 740
• Parties: KING et al. v. KING et al.
• Court: Alabama Supreme Court

4 So.2d 740

242 Ala. 53

KING et al. v. KING et al.

8 Div. 72.

Supreme Court of Alabama

October 9, 1941

Rehearing Denied Nov. 21, 1941.

Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.

The suit was commenced by bill by Evan King complainant, against Edgar King, Sr., and Edgar King, Jr. filed August 1, 1933. Thereafter, October 6, 1933, it being suggested to the court that the complainant Evan King had died, it was ordered and decreed that the cause be revived in favor of his heirs at law, namely, Walter G. King and others.

The deed of January 18, 1923, recites:

"That we, E. King and L. E. King, his wife, of Marshall County, and State of Alabama, for and in consideration of the sum of five and no/100 Dollars, to us in hand paid, the receipt whereof is hereby acknowledged, have granted, bargained and sold, and by these presents, do grant, bargain, sell and convey to Edgar King, heirs and assigns, the following described real estate, to-wit:

* * * * * *

"The said Edgar King is to live on the above described land and to cultivate or to have cultivated said lands, and to pay rent on said lands that are now in cultivation. Any of the said lands that the said Edgar King improves and puts into cultivation he is to pay no rent whatever.

"The said Edgar King is to care for the said E. King and L. E King for the term of their lives. It is agreed that when the said Edgar King offers this land for sale this deed is to become void and of no effect. It is the intention of the grantors in this deed that said lands to to Edgar King, Jr., son of the grantee in this deed upon the death of the said Edgar King.

"It is agreed that if the said Edgar King fails to care for grantors, E. King and L. E. King, this deed to become void and of no effect.

"Together with all and singular the tenements and appurtenances thereunto belonging or in anywise appertaining. To have and to hold to the said Edgar King for his natural life."

Oliver D. Street, of Guntersville, for appellants.

Marion F. Lusk, of Guntersville, for appellees.

BROWN Justice.

The contention of appellees that the right to rescind a conveyance, made in consideration of an agreement of the grantee to support the grantor, conferred by § 8046 of the Code of 1923, § 15, Tit. 20 of the Code of 1940, is personal to the grantor and does not survive in favor of his heirs, is not presented on this record.

While the circuit court ruled against this contention, the appellee failed to make a cross-assignment of error predicated on that ruling. Moreover, neither of the deeds in question falls within the influence of said section of the Code, which first appeared in the Code of 1923, and became effective on the 17 day of August, 1924. The first deed was executed on the 18 day of January, 1923, and was filed for record on the 9 day of April, 1923. Woods et al. v. Wright, 223 Ala. 173, 134 So. 865.

The second deed purports to cancel the first on the theory that it was within the influence of said section and was revokable at the will of the grantor, notwithstanding the statute prescribed the method of revocation, i.e., a proceeding "in equity to annul such conveyance." Code of 1923, § 8046.

Said second deed purports to reserve in the grantor a life estate, grant a life estate to the grantee, and a life estate to the grantee's son, with remainder in fee to the heirs of his body, and in default of such heirs, to the bodily heirs of the grantor's son.

That deed was made "in consideration of the love and affection of the grantor herein named for his son the said Edgar King and his grandson, Edgar King, Jr. (son of the grantor's) and in consideration of the sum of one dollar in hand paid to the said grantor herein by the said Edgar King."

If it should be conceded that evidence going to show that said deed was made in consideration of an agreement to support the grantor was admissible no such evidence was adduced. In fact the complainants' evidence goes to show that said grantor declared on the day the deed was executed, and before its execution that he was "going to do something that might send him to the poor house."

The first contention of appellants is that the material allegations of the bill are admitted by the answer, and the allegations so admitted raise a presumption of fraud and undue influence, make a prima facie case for complainants, shifting the burden of going forward with the evidence and showing that the transaction was free from fraud and undue influence.

This contention cannot be sustained. The allegations referred to are found in paragraph two of the bill, to wit: "That the defendant Edgar King is the son of complainant, and is a young man in the prime of his mental and physical vigor, and has been since and before and during the matters complained of herein, and that defendant is old, feeble, infirm and ill and has been before and since and during the matters complained of herein."

Paragraph 1 of the answer is: "That the facts stated in Paragraphs 1 and 2 are admitted in substance as therein stated, except as to complainant Evan King being feeble, infirm and ill on or about or soon after the 18th day of January, 1923, and from then on down to the 1st day of May, 1929, and especially is it denied that the said ...