Orton v. Gay

• Decision Date: 29 January 1970
• Docket Number: 6 Div. 700
• Citation: Orton v. Gay, 231 So.2d 305, 285 Ala. 270 (Ala. 1970)
• Parties: Betty Gay ORTON v. Lonia Violet GAY.
• Court: Alabama Supreme Court

Page 305

231 So.2d 305

285 Ala. 270

Betty Gay ORTON v. Lonia Violet GAY.

6 Div. 700.

Supreme Court of Alabama.

Jan. 29, 1970.

Rehearing Denied Feb. 26, 1970.

Rogers, Howard, Redden & Mills, Birmingham, for appellant.

Maurice Rogers, Birmingham, for appellee.

BLOODWORTH, Justice.

This is an appeal by respondent from a decree setting aside a real estate deed made to her by the complainant (her mother); entering a judgment against her for $9,932.75; and, finding reasonable grounds to believe that complainant is mentally incompetent at the present time, and in need of a guardian to conduct her business affairs.

Complainant is the widow of Henry Oscar Gay who died testate March 5, 1966, bequeathing his entire estate to her. She was 70 years old at the time of the trial. There are three children of the Gays, all of whom were over 21 years of age at the time of the trial, respondent Betty Gay Orton, Truman Gay, and Helen Cheatham.

On November 30, 1966, Mrs. Gay Conveyed all her real estate by warranty deed to her youngest daughter, Mrs. Orton. On June 15, 1967, she filed a bill of complaint against her daughter seeking to set aside the deed, alleging it was procured by fraud and undue influence; and, also seeking to set aside certain transfers of personalty on account of fraud and undue influence.

The bill of complaint, as amended, alleges, in substance, as follows: That complainant is 69 years of age, a widow, and considerably dependent upon the advice, counsel and assistance of respondent, her only child living in Jefferson County, Alabama; that she has very little business experience with matters such as finances, taxation, real estate management and legal procedures; that she was advised and induced by respondent to execute a warranty deed conveying her entire real estate holdings worth in excess of $50,000 to respondent; that respondent falsely represented to her, with intent to defraud her out of her real estate, that unless she conveyed the real estate to respondent, the great bulk of her property would be lost to inheritance taxes; that she should convey all of her real estate to the respondent in order to become eligible to receive old age benefits, and that she would not receive full benefits unless she did divest herself of the real estate; that respondent could more ably handle the management of the real estate; that the execution of the deed was not her own free act but was in actuality the act of the respondent and a consequence of the undue influence practiced upon her by respondent, while the two occupied the confidential relationship of mother and daughter; that the respondent by the practice of undue influence upon her mother, and by false and fraudulent representations, has taken her cash, stocks and bonds in the approximate sum of $25,000; that the deed was executed and delivered to respondent without any consideration whatever; that as a result of the confidential relationship, the complainant relied upon her daughter and believed that false representations, and therefore executed and delivered the deed; that, as a result of the confidential relationship with the complainant, respondent prevailed upon her mother to make the respondent a joint tenant on all her (complainant's) bank accounts, bonds and stocks, and then converted the personal property to her own personal use.

There are 15 assignments of error. They fall into three categories, and thus we will consider them.

First, whether the bill was demurrable (assignments of error 1--5).

Second, whether the proof was sufficient to sustain the averments of either 'fraud' or 'undue influence' (assignments of error 6--10).

Third, whether the trial court was in error in several of its rulings on evidentiary question (assignments of error 12--15).

Whether the Bill was Demurrable

The first assignment of error charges that the court erred in overruling respondent's demurrer to the amended bill of complaint, as a whole. Respondent's argument is that the bill is multifarious. She says the bill seeks to cancel the deed, and seeks to avoid unspecific transfers of cash, stocks, and bonds which the bill alleges were both effected through fraud and undue influence.

As a general rule, a bill in equity is multifarious when it seeks relief as to two distinct subjects having no connection with each other. We think what we said in City of Marion v. Underwood, 231 Ala. 225, 227, 164 So. 296, has application here:

'* * * As often observed, no universal rule in regard to multifariousness is admitted to be established as to cover all possible cases. The objection is largely a matter of discretion, and every case must, in a measure, be governed by what is convenient and equitable under its own peculiar facts, subject to the recognized principles of equity jurisprudence. It is, therefore, always proper to exercise this discretion in such a manner as to discourage future litigation and prevent multiplicity of suits * * *. * * *'

See also, Krieger v. Krieger, 276 Ala. 466, 163 So.2d 623; Littleton v. Littleton, 238 Ala. 40, 188 So. 902.

With these principles in mind, we think the trial court did not err in overruling the demurrer to the bill, as amended, on this ground.

Assignment of error 2 charges the court erred in overruling respondent's demurrer to the aspect of the amended bill which sought to set aside the deed on the basis of fraud, in that the averments are insufficient in failing to aver the complainant relied upon any false representation.

Respondent says, and we agree, that our rules of equity pleading do not permit fraud to be alleged as a conclusion. Rather, facts out of which it is alleged to have arisen must be averred. Springdale Gayfer's Store Co. v. D. H. Holmes Co., 281 Ala. 267, 201 So.2d 855; Turner v. Sullivan, 272 Ala. 608, 133 So.2d 254.

Whether the averments of the bill in the instant case sufficiently aver reliance by the complainant upon any false misrepresentation made by the respondent we do not have to decide. For, even if we assume the bill to be demurrable, we do not find that the trial court's overruling the demurrer constitutes reversible error.

We have held that where the trial court overrules a demurrer, without ruling on the demurrers to the separate aspects of the bill, the effect is a ruling only on the demurrer to the bill as a whole, and the decree must be affirmed on appeal if any aspect is good. McCary v. Crumpton, 263 Ala. 576, 83 So.2d 309; Taylor v. Jones, 280 Ala. 329, 194 So.2d 80.

Since we think the bill contains equity insofar as it seeks to have the deed declared invalid on the ground of 'undue influence,' we find no merit in this assignment.

In assignment of error 3, respondent claims the court erred in overruling respondent's demurrer to that aspect of the bill, as amended, which sought to set aside the deed for 'undue influence.' Respondent concedes that undue influence may be alleged as a conclusion. However, she contends that the complainant undertook to set out the facts upon which undue influence is based and that such facts are not sufficient as a matter of law.

We think the bill as amended contains sufficient allegations of 'undue influence,' to withstand the grounds of demurrer attacking this aspect.

We have held that a bill alleging undue influence is not subject to demurrer for failure to allege acts of undue influence in detail. Barkley v. Boyd, 211 Ala. 50, 99 So. 196.

Nor, are we convinced by the argument of respondent that the complainant, instead of relying on undue influence in general terms, has set out the quo modo and that the facts alleged are insufficient as a matter of law. We think the several allegations of undue influence are sufficient with respect to that aspect which seeks to set aside the deed.

In assignments of error 4 and 5, respondent charges the allegations of the bill are insufficient to allege 'fraud' and 'undue influence' as grounds for setting aside the transfers of personal property.

These allegations are meager. But, we pretermit consideration as to whether they are sufficient, in view of our conclusion, hereinafter stated, that the evidence is insufficient to support the trial court's decree setting aside the transfers of personalty.

Whether the Proof is Sufficient

Assignment of error 6 charges that the court erred in its final decree in setting aside the deed executed by complainant to respondent.

The trial court's decree made no finding of fact and does not point out whether it set aside the deed on the grounds of fraud or undue influence. The rule in this regard is that the reviewing court will assume that the trial court made those findings which the evidence supports and which will justify the decree rendered. Dockery v. Hamner, 281 Ala. 343, 202 So.2d 550.

We have also said that if the trial court's decree is fairly supported by credible evidence under any reasonable aspect, we must affirm the decree, irrespective of what view we may take as to the evidence. Tyra v. Burns, 279 Ala. 84, 181 So.2d 899.

In view of our previously announced conclusion that we do not have to decide whether the pleadings adequately aver fraud, since there is a good aspect relative to undue influence, then obviously we do not have to determine whether the evidence supports the decree setting aside the deed on the fraud theory.

At the outset, we feel we should reiterate certain legal principles which must obtain before a deed may be set aside on the ground of undue influence.

In general, the undue influence which is required to avoid a conveyance must proceed from some act of dominance or coercion over the will of the grantor. Fortune v. Boutwell, 271 Ala. 592, 126 So.2d 116. That is, to constitute undue influence, it must be such as to dominate the grantor's will and coerce his will to serve another's in the act of conveying. Halman v. Bullard, 261 Ala. 115, 73 So.2d 351.

What is 'undue influence' depends on the facts and circumstances of each case....