Kyle v. Perdue

• Decision Date: 04 November 1891
• Citation: 10 So. 103,95 Ala. 579
• Parties: KYLE ET AL. v. PERDUE ET AL.
• Court: Alabama Supreme Court

10 So. 103

95 Ala. 579

KYLE ET AL. v. PERDUE ET AL.

Supreme Court of Alabama

November 4, 1891

Appeal from chancery court, Etowah county; S. K. MCSPADDEN Chancellor.

Bill by R. B. Kyle and others against Augusta E. Perdue and others to foreclose a mortgage, of which they claim to be owners under an instrument alleged to have been executed by defendant Mrs Perdue. Decree ordering the delivery of the mortgage to defendants by the complainants, and the cancellation of the same. Complainants appeal. Affirmed.

W H. Denson, for appellants.

Dortch & Martin, W. L. Whitlock, and Amos E. Goodhue, for appellees.

WALKER J.

The original bill in this case was filed for the foreclosure of a mortgage, the ownership of which was claimed by the appellants R. B. Kyle and Sam Henry under a certain instrument alleged by them to have been executed by Mrs. Augusta E. Perdue on the 9th day of August, 1886. The case was in this court at a former term on an appeal from a decree sustaining demurrers to the bill. It was then held that, so far as the title to the mortgage and the right to sue on it were concerned, the instrument was not testamentary in character, but operated as a deed. It was decided that the demurrers had been improperly sustained. Kyle v. Perdue, 87 Ala. 423, 6 South. Rep. 296. After the remandment of the cause Mrs. Perdue interposed an answer and cross-bill, wherein she denied the rights set up by Kyle and Henry under the instrument of August 9, 1886, and asked that it be canceled, on the grounds (1) that her signature to it was made at a time when she was physically and mentally incapable of transacting business of any kind, so that in signing the instrument she knew nothing of its contents or of its import; and (2) that in the alleged execution of said instrument she did not act freely and understandingly, but that her signature to the same was procured by the fraud and undue influence of Kyle and Henry, who had long been her confidential friends and business advisers, and as such had great influence over her, which they abused by getting her to convey all her property to them at a time when she was prostrated by a serious illness, and when she did not understand the terms or effect of the instrument which she signed. That instrument cannot stand if either of the above-mentioned grounds of attack upon it is sustained by the evidence. The testimony of several witnesses, whose credibility does not seem to be affected by any improper bias, tends strongly to show that on the 9th of August, 1886, Mrs. Perdue was in no condition, mentally or physically, to attend to the disposition of her property. Two colored women who waited on Mrs. Perdue during her sickness described her condition at and about the time the paper was signed as one of extreme illness. It appears from their testimony that she was physically helpless, was out of her head, and was unable to transact any business. Mrs. Hosmer, who was a near neighbor of Mrs. Perdue, and was present when the instrument in question was signed, describes her as completely prostrated mentally and physically at that time, and says that her mind was not then strong enough to enable her to know and understand the business she was engaged in. Mr. Mower, a minister of the Protestant Episcopal Church, states that he had known Mrs. Perdue since 1850, and was for many years a friend of her deceased husband, who was a minister of the same church. He testifies that as minister he called to see Mrs. Perdue on the day the paper was signed, and that at that time her mind was seriously impaired, and that she was neither mentally nor bodily in a condition to attend to any business relating to the disposal of her property. Mr. Dortch, an attorney, states that on Sunday, the 8th of August, 1886, he was asked by R. B. Kyle to go to Mrs. Perdue's residence, Kyle stating that Mrs. Perdue wanted to dispose of her property, and wished the witness to draw the papers. Mrs. Perdue was found in a condition of such prostration that the business was postponed until next day. On the next morning Mr. Kyle again asked the witness to go to Mrs. Perdue's residence. The witness refused to go, at the same time telling Mr. Kyle that he had determined not to go back there, as it was his judgment and opinion that Mrs. Perdue was unable to dispose of her property, and that he would have nothing to do with drawing the papers. There was other evidence to support the allegation that Mrs. Perdue was at that time physically and mentally unfit to attempt the transaction of business. On the other hand, the witnesses introduced by the defendants to the cross-bill, including the physician who regularly attended upon Mrs. Perdue during her sickness, stated that she was competent to transact business, and that she was able to understand the instrument when she signed it. We are thus confronted with irreconcilable conflicts in the testimony upon the issue as to Mrs. Perdue's mental competency at that time.

In considering the evidence bearing upon the charge that Mrs. Perdue, in signing the instrument, was unduly influenced by Kyle and Henry, who abused the confidence which she reposed in them as her trusted friends and business advisers, it is material to ascertain at the outset the truth as to the relations existing between the parties. Kyle and Henry admit that they were on terms of intimate friendship with Mrs. Perdue, but deny that they occupied towards her any relation of special trust or confidence. From their own account of this matter the following state of facts is disclosed: Kyle and Henry were men of wealth, actively engaged in business pursuits. For many years prior to his death they were intimate personal friends of Dr. Perdue, who was a clergyman and a school-teacher. He frequently advised with them as to his business affairs. His means were invested in a residence in Gadsden, in railroad stocks and bonds, and in notes and mortgages. He had no children, and bequeathed all his property to his wife A few weeks before his death he told Mr. Henry that he wanted him to look after and care for his wife. This conversation Henry repeated to Mrs. Perdue after her husband's death. After she became a widow both Henry and Kyle frequently advised her in regard to her business affairs. She had such confidence in them that she requested them to use money she had on hand, and pay her interest on it, as she preferred that disposition of it to any other investment. To satisfy her, each of them accepted some of her money in this way, giving their notes and paying the interest as it accrued. The box containing her valuables was kept in Mr. Henry's vault. He attended to getting the securities which her husband had left her transferred to her name, and looked after collections for her. She was an old woman, and it is plain that she regarded Kyle and Henry as her trusted friends; that she was in the habit of applying to them for advice in all business matters or troubles; and that they advised and assisted her whenever the occasion to do so was afforded. She had been quite ill for several weeks when, on August 8, 1886, Mr. Kyle called to see her in response to a message to the effect that she wished to see him on business. When he entered her room she said that she wanted to see him about her business. In the course of the conversation she said that she was very sick, and wanted to arrange her business before she got worse. She did not on that occasion state what disposition she wished to make of her property, but requested Mr. Kyle to bring Mr. Dortch to draw the papers. Kyle returned with Mr. Dortch during the afternoon of that day. At that time Mrs. Perdue was greatly prostrated, and stated that she was unable to attend to the business. She requested Mr. Kyle to bring Mr. Henry with him when he came again. Henry states that on the morning of August 9th Kyle said to him that Mrs. Perdue wished them to come to her house; that she wanted to make some disposition of her property. They accordingly went to her house that morning. Mr. Dortch having refused to go with them, they decided to take another attorney. The attorney who accompanied them had never spoken to Mrs. Perdue before that day. When her attention was called to his presence, and he spoke to her, she asked him if he was a lawyer. Both Kyle and Henry say that when they went to Mrs. Perdue's residence that morning they did not know what disposition she proposed to make of her property. From their own version of the circumstances attending their visit, it is plain that they understood that Mrs. Perdue wished to make some deposition of her property, and that she desired them to be present to see that the business was properly attended to. Mr. Henry says that when the instrument which she signed was read over to her she asked him if it was right. She sought and relied upon his advice, as she had often done before. In considering the transaction then had between Mrs. Perdue on the one hand, and Kyle and Henry on the other, due regard should be had to their attitude towards her as shown by their previous relations with her, and by the circumstances which led to their presence in her house on that occasion.

There are well-established rules to be applied in passing upon transactions between persons whose relations are such as to suggest that in dealings between them confidence is reposed and accepted to such an extent that one of them is subject to the influence or...