Milliner v. Grant, 8 Div. 482

• Decision Date: 30 March 1950
• Docket Number: 8 Div. 482
• Citation: Milliner v. Grant, 253 Ala. 475, 45 So.2d 314 (Ala. 1950)
• Parties: MILLINER v. GRANT.
• Court: Alabama Supreme Court

Page 314

45 So.2d 314

253 Ala. 475

MILLINER v. GRANT.

8 Div. 482.

Supreme Court of Alabama.

March 30, 1950.

Ralph H. Ford and Griffin, Ford, Caldwell & Ford, of Huntsville, and Joe M Dawson and Brown, Scott & Dawson, of Scottsboro, for appellant.

Proctor & Snodgrass, of Scottsboro, for appellee.

LIVINGSTON, Justice.

This suit was instituted to cancel, set aside and hold for naught a deed alleged to be the product or result of the 'undue or dominating' influence of respondent upon complainant. We take it that, as here used, 'undue' and 'dominating' mean one and the same thing. The cause was tried in the court below on the depositions of witnesses, and there is no presumption here in favor of the finding of that court on the evidence.

The parties are sisters. At the time the deed was executed and delivered the appellant and grantor in the deed was approximately 22 years old and the and the appellee and grantee was approximately 30 years of age.

The property in question, a farm, was inherited in the year 1930 by descent cast from the father of the parties to this proceeding. On December 27, 1941, the appellant executed and delivered to the appellee a deed conveying her undivided one-half interest in and to the farm inherited from the father. The recited consideration was $5,000 to be paid in 25 equal payments over a peroid of 25 years, and secured by a mortgage on the property, the unpaid balance to bear interest at the rate of four percent per annum. This mortgage was executed and delivered to appellant and payment made in accordance therewith until this suit was instituted on, to wit, December 23, 1946. The appellant is of a low order of mentality and has twice (once in 1936 and again in 1942) been an inmate of Bryce Hospital, an Alabama state hospital for the mentally deficient at Tuscaloosa. But the validity of the deed in question has not been attacked on the ground that appellant was mentally incompetent to make it. A short time before this suit was brought appellant married one Milliner, a man some 25 years older than she. Appellee's testimony was to the effect that Milliner was the instigator of this suit and the moving spirit behind its prosecution: that her sister did not want the suit brought and did not testify in the case, although she was well and able to attend court.

Every phase of the law applicable to the facts of the instant case is stated in the case of Floyd v. Green, 238 Ala. 42, 188 So. 867, 869, as follows:

'In Walling v. Thomas et al., 133 Ala. 426, 430, 31 So. 982, 983, the authorities are collected to the effect that, 'A conveyance of lands, obtained for a grossly inadequate consideration, by unfair advantage taken of great mental weakness, though not amounting to absolute incapacity, of the grantor, will, in equity, be set aside, on equitable terms, when application therefor is made seasonably by the grantor, his representatives or heirs. Waddell v. Lanier, 62 Ala. 349; Shipman v. Furniss, 69 Ala. 562, 44 Am.Rep. 528; Burke v. Taylor, 94 Ala. 530, 10 So. 129; Allore v. Jewell, 94 U.S. 506, 24 L.Ed. 260; Harding v. Handy, 11 Wheat. 103, 125, 24 U.S. 103, 6 L.Ed. 429; Raymond v. Wathen, 142 Ind. 367, 41 N.E. 815; 18 Enc. Pl. & Prac. 765, 771. In such case, the deed, being voidable only, and not wholly void, passes title to the grantee, and the heirs' claim to relief rests not on legal succession to the title, but on an equitable right to be invested with such succession. The relief appropriate to be afforded by the courts is by enforcing rescission of the contract of sale, and cancellation of the deed.'

'To like effect are the recent decisions in this court and in other jurisdictions. Kirby v. Arnold, 191 Ala. 263, 68 So. 17; Pool v. Menefee, 205 Ala. 531, 88 So. 654; Strickland v. Strickland, 206 Ala. 452, 90 So. 345; L.R.A.1916D, 388, note; 2 A.L.R. 432-note; 2 A.L.R. 449, note.

'As to just what constitutes undue influence depends on the facts and circumstances of each individual case. Pilcher v. Surles, 202 Ala. 643, 81 So. 585; Barkley v. Boyd, 211 Ala. 50, 99 So. 196.

'There are certain principles that are established, illustrated and well stated as follows:

'In the case of Hutcheson v. Bibb et al., etc., 142 Ala. 586, 38 So. 754, it is declared:

"* * * 'Undue influence with respect to gifts and conveyances inter vivos is a very different matter. It may exist without either coercion or fraud. It may result entirely from the confidential relation, without activity in the direction of either coercion or fraud, on the part of the beneficiary occupying the position of dominant influence. It is upon him not only to abstain from deceit and duress, but to affirmatively guard the interests of the weaker party, so that their dealing may be upon a plane of equality and at arm's length. To presume undue influence in such a case, therefore, is not to presume fraud or coercion, or any act which is malum in se, but simply the continuance of the influence which naturally inheres in and attaches to the relation itself.' The doctrine is that, in addition to the relations between the testator and the beneficiary under the will, in order to put the burden of upholding the validity of the will upon the beneficiary, when assailed on the ground of undue influence, there must be some evidence of coercion in its execution, or, in other words, that the will is not the will of the testator. This may be done by showing that the person who is the principal or a large beneficiary under the will actively participated in the preparation or execution of the will. McQueen v. Wilson, 131 Ala. 606, 31 So. 94.

"The rule in such cases is based upon grounds of public policy, and was never intended to deprive one of the right of a voluntary and untrammeled disposition of his own property, but rather to guard and protect that right. It is in effect a rule of evidence, putting upon the dominant party in confidential relations, claiming a benefit under the transaction, the burden and duty of rebutting and overcoming the prima facie case so made by the presumptions which the law raises. * * *.'

'This rule has long prevailed. Justice Goldthwaite said in Boney et al. v. Hollingsworth et al., 23 Ala. 690, 698 and 700, that,

"There is also another, and a very comprehensive class of cases, in which equity looks to the peculiar situation which the parties occupy towards each other, and if one occupies a relation from which an unusual degree of confidence, affection, or sense of duty naturally springs, the utmost degree (uberrima fides) is demanded--Story's Eq. § 218; and when this relation does exist, says Judge Story, courts of equity acting upon this superinduced ground, in aid of general morals, will not suffer one party, standing in a situation of which he can avail himself against the other, to derive advantage from that circumstance; for it is founded in a breach of confidence.--Story's Eq. § 308.

"* * * taking into consideration the position they occupy towards Mrs. Hollingsworth, we think that proof of the mere execution or ratification of the deed, so far as she is concerned, is not sufficient to sustain it. Until some inducement is shown, the law must always regard with suspicion an act by which a sister divests herself of a valuable interest in favor of a brother. There may be no fraud; everything may be honest and fair; but until the act is satisfactorily accounted for, the inference of fraud, artifice or abuse of confidence, is so strong, that we think equity should always relieve against it.

"In the present case, the ties of affection and confidence resulting from the near relation of the parties, it is reasonable to suppose, were drawn closer by the recent bereavement common to both, and by the fact that the sister was a widow. Unless, therefore, a sufficient inducement is shown, the deed must be set aside as to Mrs. Hollingsworth.'

'The more recent declaration by this Court in Dowe v. Farley et al., 206 Ala. 421, 423, 90 So. 291, 293, is: 'That the son was the dominant party under the evidence in this cause cannot admit of doubt. The burden was upon him to show the transaction was fair, just, and equitable in every respect. It needs no discussion to disclose that this burden has not been discharged. This feature of the decree is therefore free from error.'

'In Kyle v. Perdue, 95 Ala. 579, 585, 588, 10 So. 103, 104, Mr. Justice Walker, for the Court declared:

"There are well-established rules to be applied in passing upon transactions between persons whose relations are such as to suggest that in dealing between them confidence is reposed and accepted to such an extent that one of them is subject to the influence or ascendency of the other. When such a relationship is shown to exist, if the one who was in a position to exert the influence claims the benefit of a contract with the person bestowing the confidence, the burden is cast upon the former to show affirmatively that the influence of his position was not unduly exerted; that the utmost good faith was exercised; and that all was fair, open, voluntary, and well understood. This rule as to the burden of proof is of familiar application to contracts by which benefits are conferred by a cestui que trust upon his trustee, by a ward upon his guardian, by a child upon his parent, by a client upon his attorney, by a patient upon his physician, or by...