Lavett v. Lavett

• Decision Date: 02 April 1982
• Citation: 414 So.2d 907
• Parties: William A. LAVETT, as Executor of the Estate of Ellie Mae Carr, deceased v. Claude F. LAVETT. William A. LAVETT v. Claude F. LAVETT. 80-672, 80-672A.
• Court: Alabama Supreme Court

Page 907

414 So.2d 907

William A. LAVETT, as Executor of the Estate of Ellie Mae Carr, deceased v. Claude F. LAVETT.

William A. LAVETT v. Claude F. LAVETT.

80-672, 80-672A.

Supreme Court of Alabama.

April 2, 1982.

Rehearing Denied May 28, 1982.

Ralph E. Coleman, Birmingham, for appellant.

Earl R. Peyton, Gardendale, for appellee.

FAULKNER, Justice.

Ellie Mae Lavett Carr filed a complaint against her son, Claude Lavett, to cancel a deed and recover a ten acre tract of land located in Fultondale, Alabama. Mrs. Carr died a few months later. The executor of her estate, William A. Lavett, was substituted as plaintiff in the action. Claude Lavett filed suit against the heirs and devisees of Mrs. Carr to quiet title to the ten acre tract of land. The two actions were consolidated for trial.

The essence of Mrs. Carr's complaint is that she conveyed the land based on the fraudulent misrepresentations of her son. Mrs. Carr alleged that Claude Lavett moved into a house on his mother's property in 1967. Mrs. Carr wished to give her son an acre of land on which to build a new house. Mr. Lavett needed a loan to finance the building of the house, but could not secure a loan without collateral. Claude Lavett allegedly misrepresented to his mother that if she would convey the entire tract to him, he would secure a loan to build the house, and reconvey the property back to Mrs. Carr. Mrs. Carr executed a deed of the tract to her son, stating $1.00 as consideration. On July 11, 1975, Claude Lavett executed a deed transferring one acre of the land to Mary Warren. On the same day, Mary Warren executed a deed reconveying the land to Claude Lavett. The latter deed was not recorded until January 16, 1979.

On May 16, 1978, Mrs. Carr filed suit against Claude Lavett. In an affidavit, she stated that her intent was to devise the ten acre tract to her three sons, to be divided equally. Mrs. Carr expressed this intent in her will which was executed May 9, 1978.

The parties tried the action before the trial judge, sitting without a jury. The trial court entered a judgment in favor of the appellee, Claude Lavett. The estate of Mrs. Carr appeals.

At trial, the parties introduced conflicting testimony about the reason for the transfer of the disputed tract of land and the terms of the transfer. Claude Lavett testified that his mother transferred the property to him to prevent the property from being sold, so she might have a place to live when she was older. He testified that his brother offered to buy the land from their mother, with the intent of dividing the property and selling it in lots. He testified that Mrs. Carr intended for him to have the property, and said she would deed the property to him at that time if he would promise not to sell it. Claude Lavett's wife and sister-in-law testified that Mrs. Carr told them that she wanted her son, Claude, to have the ten-acre tract.

William Lavett, the executor of Mrs. Carr's estate, testified that Mrs. Carr, in conversations with him, told Mr. Lavett that she transferred the property to Claude only temporarily, to secure a loan. William Lavett claimed that his mother said that she agreed to transfer the property as security for a mortgage, and that Claude agreed to use the funds to build a new house on the land. After the house was completed, Claude Lavett was to reconvey the land to his mother and she would then deed one acre and the new house to him. William Lavett's ex-wife corroborated his testimony. Likewise, the affidavits signed by Mrs. Carr before her death stated substantially the same testimony. Mrs. Carr's will, executed about the same time as the affidavits, devised the land to her three sons, with the exception of one acre, which was to go to Claude Lavett.

The appellants contend that the admission of certain testimony, which was objected to at trial, is reversible error. The appellant asserts that the following testimony of Mary Warren, Claude Lavett's sister-in-law, was inadmissible as violating the hearsay rule and the Dead Man's Statute (Code 1975, § 12-21-163):

MR. COLEMAN: Your Honor, we are going to object. It's against the Dead Man Statute. She's testified she is the sister-in-law to a party here in interest, it's also hearsay, outside of the presence of the two Defendants.

THE COURT: Overruled.

MR. COLEMAN: Except

Q: (by Mr. Peyton) Did you have any conversations with Mrs. Carr--do you remember the question?

A: Yes.

Q: You may answer it if you do.

A: Well, I remember her saying, she told me--

Q: Wait a minute. First, did you have such a conversation?

A: Yes.

Q: Now, what did she say during the course of that conversation?

MR. COLEMAN: Your Honor, same objection. Dead Man Statute. Also, hearsay.

THE COURT: Overruled.

MR. SHIELDS: I don't know if we need to object, Your Honor. But, we also put our objection on the record.

THE COURT: Objection overruled.

MR. PEYTON: You may answer.

A: Well, she told me that she was real glad that Farley and Dot moved out there on the land, she couldn't get anyone to move out there. She wanted them, you know, to have the land, would be out there around the home. ' Cause, they did move out there on the land.

Hearsay may be defined as evidence of an out of court statement, being offered to show the truth of the matter asserted. Stephens v. Central of Georgia Railroad Co., 367 So.2d 192 (Ala.1978). The general rule is that hearsay is inadmissible. Id. A well recognized exception to the hearsay rule is a declaration, by a person not available at trial, made against his or her pecuniary or proprietary interest--a declaration against interest. Gamble, McElroy's Alabama Evidence, § 245.01 (3d ed. 1977). See Redmond v. Self, 265 Ala. 155, 90 So.2d 238 (1956). The testimony of Mary Warren falls within this exception to the hearsay rule. She testified that Mrs Carr stated that she wanted her son, Claude, to have the ten acres. This statement by Mrs. Carr is clearly against her pecuniary interest--acknowledging that she desired her son Claude to have the property that she had transferred to him.

Section 12-21-163, the so-called "dead man's statute" provides that:

"[N]o person having a pecuniary interest in the result of the action or proceeding shall be allowed to testify against the party to whom his interest is opposed as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the action or proceeding or when such deceased person, at the time of such transaction or statement, ... unless called to testify thereto by the party to whom such interest is opposed or unless the testimony of such deceased person in relation to such transaction or statement is introduced in evidence by the party whose interest is opposed to that of the witness or has been taken and is on file in the case. No person who is an incompetent witness under this section shall make himself competent by transferring his interest to another."

Several provisions of the dead man's statute indicate that the testimony of Mary Warren and Claude Lavett is not excluded.

The statute excludes testimony of a person with an adverse interest unless "the testimony of such deceased person in relation to the transaction or statement is introduced in evidence." In the present case, Mrs. Carr filed affidavits relating her version of the transaction transferring the disputed property. "Testimony" is evidence delivered by a witness either orally at trial or in the form of affidavits or depositions. Black's Law Dictionary 1646 (4th ed. rev. 1968). Thus, the introduction of Mrs....