Mooney v. Mooney

• Decision Date: 26 October 1922
• Docket Number: 7 Div. 275.
• Citation: 208 Ala. 287,94 So. 131
• Parties: MOONEY v. MOONEY.
• Court: Alabama Supreme Court

94 So. 131

208 Ala. 287

MOONEY v. MOONEY.

7 Div. 275.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

Bill by Hannah C. Mooney against R. C. Mooney, to cancel a deed. From a decree for complainant, defendant appeals. Affirmed.

Isbell & Scott, of Ft. Payne, for appellant.

C. A Wolfes, of Ft. Payne, for appellee.

MILLER J.

The complainant, Hannah C. Mooney, appellee here, seeks to have canceled and declared void by bill in equity a warranty deed made and executed by her to R. C. Mooney, her son, the defendant and appellant, first, because the deed was secured by undue influence; second, because the deed was secured through fraud or mistake, as it was executed by her as a will when it was a deed; and, third, because the consideration of the instrument was $1 cash and "the further consideration that the party of the second part [R. C Mooney] is to look after and care for the party of the first part [Hannah C. Mooney] during her lifetime and the party of the first part expressly reserves the right to control and use the property herein deeded during her lifetime and the right to use the same for her support and comfort during her lifetime," and this consideration has not been carried out by the defendant; he has not cared for or looked after her; that he has control and possession of the land, and denies her the right to control and use it, and has paid her no rent for it.

There was decree granting complainant relief, declaring the deed annulled, directing that it be canceled on the records where recorded, and taxing the defendant with the court cost. From this decree the defendant appeals, and it is assigned as error.

Hannah C. Mooney is a widow. Her husband died in 1915, a resident of this state. This 87 acres of land involved in this suit was their homestead. It was all the land he owned. After his death, by decree of the probate court of De Kalb county it was set apart to her as a homestead, exempt from the administration of his estate; and under the law and admitted facts by the parties the title to it vested in her absolutely. After it was set apart to her as exempt this deed in question was executed on August 21, 1916. She was 76 years old when this bill was filed in April, 1921, and she was feeble and old when the deed was made. She has three sons the defendant is the youngest, and his age is now 37; he is strong and in good health.

This instrument has one subscribing witness, and is acknowledged by complainant before a judge of probate in the form provided for deeds. It conveys the land to the defendant, and in its very body, as part of and the real consideration of the deed is an agreement by defendant "to look after and care for" the complainant "during her lifetime" and complainant expressly reserved in writing in the deed "the right to control and use the property herein deeded during her lifetime and the right to use same for her support and comfort during her lifetime." The land was to belong to the...