Strickland v. Strickland

• Decision Date: 16 June 1921
• Docket Number: 4 Div. 920
• Citation: 206 Ala. 452,90 So. 345
• Parties: STRICKLAND et al. v. STRICKLAND.
• Court: Alabama Supreme Court

90 So. 345

206 Ala. 452

STRICKLAND et al. v. STRICKLAND.

4 Div. 920

Supreme Court of Alabama

June 16, 1921

Rehearing Denied Oct. 13, 1921

On Rehearing.

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Bill by M.E. Strickland against C.G. Strickland and the Bank of Gordon to cancel a deed and mortgage or in the alternative to cancel the deed and redeem from the mortgage. From a decree overruling demurrers to the bill, respondents appeal. Affirmed.

The bill alleges the execution to C.G. Strickland by M.E Strickland on August 31, 1917, of a warranty deed to 80 acres of land for an express consideration of $1,000. The allegation is that said deed or instrument was obtained by the said respondent C.G. Strickland, through an undue influence over complainant, and that she is entitled to have said instrument canceled and her property restored to her. It is further alleged that after obtaining said deed or instrument, and acquiring possession of the premises under an undue influence, said C.G. Strickland mortgaged said premises with the Bank of Gordon to secure a note for $280, and complainant is informed and believes, and on such information and belief charges, that said bank had knowledge of the fraudulent transaction by which C.G. Strickland through an undue influence obtained complainant's property, and that the debt secured by the said mortgage existed prior to the execution of the mortgage, and that the debt is usurious.

Farmer Merrill & Farmer, of Dothan, for appellants.

R.C Williams and T.M. Espy, both of Dothan, for appellee.

SAYRE J.

Complainant (appellee), M.E. Strickland, filed this bill against C.G. Strickland and the Bank of Gordon (appellants). The purpose of the bill is to set aside and cancel a deed, purporting to have been made by complainant to defendant C.G. Strickland, as having been procured by undue influence exercised by the latter over the former, and to set aside and cancel, in so far as it affects complainant's title, a later deed of mortgage made by defendant C.G. Strickland to the bank, the averment as to that being that the bank, when it took its mortgage, had knowledge of the fraudulent transaction whereby defendant procured his deed from complainant. In the alternative it is prayed that if mistaken as to the averment of knowledge on the part of the bank, complainant may be allowed to redeem from the bank by paying whatever may be due on its mortgage, that complainant be awarded judgment against defendant C.G. Strickland for any amount she may be required to pay to the bank for redemption, and for general relief. Complainant "submits herself to the jurisdiction of this court [the circuit court sitting in equity], and offers to obey the orders of the court and its decrees, and to perform full equity in the premises as may be determined [by the court]." The demurrer objects: (1) That the bill states a mere conclusion of the pleader, and fails to set forth the facts constituting the undue influence relied upon; (2) the bill fails to show that complainant, before filing her bill, returned the money received by her for the deed; (3) the bill fails to show that complainant is in possession of the land; (4) is multifarious. The demurrer was overruled, and defendants have appealed.

Considering these grounds of demurrer in our own order, we say: Equity has jurisdiction of the bill by reason of the averment of undue influence, without more.

"Where there is no coercion amounting to duress, but the transaction is the result of a moral, social, or domestic force exerted upon a party, controlling the free action of his will and preventing any true consent, equity may relieve against the transaction, on the ground of undue influence, even though there may be no invalidity at law." 2 Pom.Eq.Jur. (4th Ed.) § 951; Shipman v. Furniss, 69 Ala. 555, 44 Am.Rep. 528; Stroup v. Austin, 180 Ala. 240, 60 So. 879; Cox v. Davis-Wilson-Gaillard Com. Co., 89 So. 437.

Formerly it was held in this court that in a bill of this character it was necessary to set forth the facts constituting undue influence. Such is still the rule of averment in cases of fraud. But now, for reasons stated in Coghill v. Kennedy, 119 Ala. 641, 24 So. 459, it is not essential that a bill praying relief on the ground of undue influence should aver the acts of undue influence in detail. In this respect the bill here follows our latest rule, and is sufficient. Alexander v. Gibson, 176 Ala. 258, 57 So. 760; Cunningham v. Herring, 195 Ala. 469, 70 So. 148, where this subject is considered more at length.

The offer, made in the bill, to perform full equity in the premises, and submitting to the jurisdiction of the court for that purpose, suffices to meet the objection stated in the second place supra. Perry...