Lee v. Menefield

• Decision Date: 31 July 1947
• Docket Number: 6 Div. 527.
• Citation: 31 So.2d 581,249 Ala. 407
• Parties: LEE et al. v. MENEFIELD.
• Court: Alabama Supreme Court

31 So.2d 581

249 Ala. 407

LEE et al. v. MENEFIELD.

6 Div. 527.

Supreme Court of Alabama

July 31, 1947

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn Judge. [Copyrighted Material Omitted]

Kermit C. Edwards, of Birmingham, and Ling &amp Bains, of Bessemer, for appellants.

J. A. Lipscomb and Theodore J. Lamar, both of Bessemer, for appellee.

SIMPSON Justice.

The appeal is from an interlocutory decree overruling demurrer to the bill as last amended. The relief sought is for the cancellation of two deeds or in the alternative to enforce a lien on the property.

The substantial facts set forth in the bill are: Appellants and appellee are sisters. Their mother, Amanda Cochran, died in 1944 leaving a will devising her real estate to appellant Edna and appellee, Altona. Altona was named as executrix in the will and when testator died the will was duly probated. But, during her lifetime and without appellee's knowledge, Amanda had deeded her homestead (all the real estate she owned) consisting of Lots 10 and 11 to Edna and Annie respectively. Edna's deed was for the recited consideration of $18 and other valuable consideration and the consideration of Annie's deed was $1 cash and love and affection. The bill alleges, however, that no consideration was paid by the grantees.

These two deeds were withheld from the record until after the probate of the will and Altona was unaware of their existence until they were filed for record in 1945. Previous to the registration of these deeds and acting on the belief that she was a joint owner of the property by reason of the devise under the will, appellee, while she was executor, procured a loan under FHA provisions from the First National Bank of Birmingham, with her husband as surety on the note. The purpose of this loan was to make improvements on this homestead property in compliance with certain municipal sanitary regulations which the city had demanded her, as executrix of the estate, to forthwith carry out. The money was so expended before she knew of the claim of her two sisters under the aforesaid deeds and the bank is looking to her and her husband to pay and satisfy the debt incurred.

The bill first seeks a cancellation of said deeds because of undue influence exerted on the grantor by the respective grantees or in the alternative to have a lien declared on the property to the extent of the debt incurred and expended by appellee for the sanitary improvements aforesaid.

The undue influence allegedly exerted by Annie on her mother is that when her mother executed to Annie her deed in August of 1943 she (Amanda) was about eighty-six years of age and was residing on the property as a homestead, which was all the real estate she owned; that she was in feeble health at the time and that appellee, Altona, was in almost constant attendance upon her, preparing her meals and attending to her comfort and support, and that the respondent Annie, who had been for many years prior thereto living in Ohio and in no wise contributing to the support or comfort of her said mother, on learning of her mother's approaching end of life made a special trip to Birmingham and while there, a guest in her mother's home, 'she imposed upon her said mother who was then in feeble health both mentally and physically and had her to execute the deed * * * and complainant charges and states the facts to be that said deed was for an inadequate consideration and upon the appearance of a gift; that immediately after she secured said deed she returned to her home in Cleveland.'

Edna's deed was executed in 1934 and the allegations to support the charge of undue influence by Edna are that prior to 1943 her mother had become feeble in mind and body and as a gift deeded Edna another valuable piece of real estate in Birmingham and that notwithstanding said advancement or gift, Edna, with knowledge of her mother's feeble condition both physically and mentally, 'influenced or imposed upon Amanda Cochran and induced her to execute a [the] deed * * * and complainant charges and states the fact to be said deed was upon an inadequate consideration and upon the appearance of a gift.' It is noted that there is want of allegation regarding the physical and mental condition of the grantor in 1934 when the deed sought to be cancelled was made.

The final allegation of the bill is that Amanda's estate has been disposed of by final settlement and that there 'is no money in said estate to reimburse the complainant for the moneys expended under the FHA loan.'

The first proposition to be resolved is whether the allegations are sufficient to make a case of undue influence warranting the setting aside of either of said deeds. It should be remarked at the outset that this case is up for consideration on demurrer to the bill and the usual rule of construing the allegations most strongly against the pleader controls. In this, among other things, the case at bar is to be differentiated from Floyd v. Green, 238 Ala. 42, 188 So. 867, where the question of pleading was not one of the debated issues.

The rule of pleading here obtaining is that undue influence on the part of a named person may be alleged in general terms, but if the facts are alleged on which the averment is rested as a conclusion, those facts must show undue influence so that, if proven, it may justify such a finding by the court. McLeod v. McLeod, 137 Ala. 267, 34 So. 228; Hortenstein v. Clark, 232 Ala. 479(4), 168 So. 564; Garrett v. First Nat. Bank, 233 Ala. 467(3), 172 So. 611; Borton v. Borton, 221 Ala. 544, 545, 130 So. 67.

The bill as last amended adopted the latter method of pleading and sought to set out the quo modo the result complained of was accomplished, so we are remitted to the facts averred to determine their sufficiency as a charge of procuring the execution of the deeds by the exercise of undue influence.

Other principles of law will now be adverted to in aid of our decision.

In transactions, inter vivos, where confidential relations exist between the parties, there is a presumption of undue influence and places on the donee, if the dominant party in the transaction, the burden of overcoming the presumption by satisfactory evidence. Hutcheson v. Bibb, 142 Ala. 586, 38 So. 754; Garrett v. First Nat. Bank, supra, and cases cited.

But in such a case as here where the relationship is of parent and child (per se confidential), there is a prima facie presumption that in all transactions between them the parent is the dominant party and free from the exercise of undue influence by the child, and before this presumption is removed it must be shown that the natural order has been reversed and the child, the donee, had become and was the dominating personality and the parent...