Pitts v. Hawkins, 6 Div. 832

• Decision Date: 10 May 1956
• Docket Number: 6 Div. 832
• Citation: 87 So.2d 835,264 Ala. 428
• Parties: J. L. PITTS v. Myrtle Pitts HAWKINS et al.
• Court: Alabama Supreme Court

Page 835

87 So.2d 835

264 Ala. 428

J. L. PITTS v. Myrtle Pitts HAWKINS et al.

6 Div. 832.

Supreme Court of Alabama.

May 10, 1956.

Rehearing Denied June 14, 1956.

Robt, A. Sapp, Cullman, for appellant.

Marvin H. Galin, Cullman, for appellees.

SIMPSON, Justice.

Myrtle Hawkins et al., the appellees, brought a bill in equity seeking a rescission of a conveyance made by their father W. E. Pitts, now deceased, to the appellant J. L. Pitts, another child. The grounds for rescission were the unsoundness of the grantor's mind on the date of the execution of the deed and the exercise of undue influence by grantee J. L. Pitts over the grantor W. E. Pitts. From the final decree of the lower court setting aside the conveyance and, as prayed for in the bill, ordering a sale of the property for a division of proceeds, the respondent J. L. Pitts has appealed.

The relation of parent and child is per se a confidential one and while it is presumed prima facie that in all transactions between them the parent is the dominant party and the transactions are free from undue influence, where it is shown that the natural order has been reversed and the child had become and was the dominating personality and the parent subservient to the will of the child, then the burden is shifted to the child to establish that the transaction was fair, just and equitable and that the parent acted upon independent advice and to repel the presumption of undue influence by clear and convincing proof that he acted in good faith and took no advantage of the parent. Hawthorne v. Jenkins, 1913, 182 Ala. 255, 62 So. 505; Gibbons v. Gibbons, 1921, 205 Ala. 636, 88 So. 833; Raney v. Raney, 1927, 216 Ala. 30, 112 So. 313; Worsham v. Johnson, 1935, 231 Ala. 265, 164 So. 381; Tipton v. Tipton, 1947, 249 Ala. 537, 32 So.2d 32; Lee v. Menefield, 1947, 249 Ala. 407, 31 So.2d 581; Crump v. Crump, 1949, 252 Ala. 164, 40 So.2d 94; Decker v. Decker, 1950, 253 Ala. 345, 44 So.2d 435; Dillard v. Hovater, 1950, 254 Ala. 616, 49 So.2d 151; 3 Pomeroy, Eq. Jur. 5th Ed., § 962a.

The determination of the question as to who was the dominant party depends on the facts and circumstances of each particular case. Dillard v. Hovater, supra. The law does not and cannot define the unnumbered conditions that may bring this about. Raney v. Raney, supra. Some of the factors which have been considered by the courts as rebutting the presumption that the parent is the dominant party and free from undue influence are: Where the parent is aged, senile, or in bad health; or in a state of impaired mentality; or where the parent comes to lean upon the child for counsel, leadership, the conduct of his affairs, and the making of a home. See Raney v. Raney, supra; Decker v. Decker, supra; Tipton v. Tipton, supra; 3 Pomeroy, Eq. Jur. 5th Ed., § 962a; 16 Am.Jur., Deeds, § 38. And in the case of a conveyance of all of one's property where the grantor is aged and feeble, only slight evidence of undue influence is necessary to rescind the deed; this is especially true when the grantor is mentally weak or the consideration is grossly inadequate. 17 Am.Jur., Duress and Undue Influence, § 43.

In the case at bar, there was evidence, although disputed, going to show that the grantor was the father of complainants and respondent and by the execution of this deed he conveyed all of his property to this one child, appellant, to the exclusion of the others, appellees--and no ill feeling existing between them. The date of the conveyance was January 26, 1953, at which time the grantor was about eighty-one years of age. The deed was not recorded until February 4, 1954--a few days after his death. After suffering a stroke and after the death of his wife in 1950, the grantor was grieved, in bad health, and unable to walk about without the use of two sticks. He was feeble in mind and body; he failed upon occasions to recognize some of his children and friends whom he had known for years, and, at times, he talked irrationally. It appears that the grantor trusted the respondent who rented from the grantor a portion of the property involved and operated thereon a farm. The respondent kept the grantor's money in a trunk and dispensed some of it to him from time to time. The grantor, after the death of his wife, made his home with his various children free of any charge; at the date of the execution of the conveyance the evidence is in dispute as to the child with whom the grantor was living, the grantee-respondent's evidence showing that the grantor lived with him. It appears also that while the grantor wanted to sell certain timber in 1951 or 1952, as a result of the respondent's influence, he did not do so. The above evidence and other not necessary to detail justified the inference that time and circumstances had reversed the order of nature and the child, J. L. Pitts, had become and was the dominating personality when the deed was executed. The burden therefore shifted to the grantee to show that the transaction was fair, just and equitable in every respect and that his father acted on independent advice.

The evidence shows that on many occasions both before and after the conveyance, the grantor said that he wanted his property divided equally among all his children. None of the grantor's other children knew anything about the deed until after their father's death, and as heretofore pointed out, the deed was not recorded until after the death of the grantor. It appears also that the grantor exercised acts of ownership over the property after the date of the conveyance. While it is undisputed that the grantor could write his own name, the deed was signed by mark of the grantor. The deed is largely typewritten and bears evidence that it was written by a skillful scrivener. And while the grantee denies that he procured the drafting of the deed, there is no evidence as to whom the grantor had employed--if so--to draft the deed. The evidence does show, however, that the grantor was old and infirm and had no means of conveyance, and when the deed was...