Terry v. Terry

• Decision Date: 23 July 1976
• Citation: Terry v. Terry, 336 So.2d 159 (Ala. 1976)
• Parties: Clayborn TERRY and Sallie Genevieve Terry v. Joe Felix TERRY, and Lillian Borden, as next friend of Joe Felix Terry. SC 1523.
• Court: Alabama Supreme Court

Page 159

336 So.2d 159

Clayborn TERRY and Sallie Genevieve Terry v. Joe Felix TERRY, and Lillian Borden, as next friend of Joe Felix Terry.

SC 1523.

Supreme Court of Alabama.

July 23, 1976.

Speake & Speake, Moulton, for appellants.

Kenneth Shelton, Decatur, for appellees.

FAULKNER, Justice.

This is an appeal from a decree of the Circuit Court of Lawrence County, cancelling a deed conveying the grantor's property to his grandson. We reverse.

On May 11, 1973, Joe Felix Terry conveyed all of his property, approximately 31 acres, including his homestead, to his grandson, Clayborn Terry, and his wife, Sallie Genevieve Terry, for consideration of $3,000. The deed was recorded on the same day.

On August 24, a complaint was filed in the name of Joe Felix Terry, by Lillian Borden, his daughter, as his next friend, against his grandson and wife, alleging that Terry was incompetent to execute the deed and was unduly influenced by his grandson and others, and received no consideration. Terry sought cancellation of the deed, and damages in the amount of $2,500 for the wrongful detention, wrongful and unlawful use, and occupation, and the wasting of the property. The grandson moved to dismiss the petition but the motion was denied. He then filed an answer to the complaint.

On the motion of the next friend to have Terry's mental condition evaluated, the trial court ordered Terry examined by Dr. Rhyne. Dr. Rhyne's letter concerning the results of his examination was filed March 26, 1974. In that letter Dr. Rhyne stated he was of the opinion Terry was competent to execute a transaction similar to the one in question. ¹ The doctor further wrote, 'He gave no indication that undue influence had been used in getting him to make the decision (to sell) the way he did.' Dr. Rhyne also stated that, although the grantor was not aware of the day of the week, the month of the year, or the year, he remembered selling his land to his grandson and he said the price was fair and that, if he had it to do over again, he would sell it to him again for the same amount.

After receipt of the physician's report, the grandson filed a motion for summary judgment, which was overruled by the court on July 23.

The case came to trial before the court and a jury acting in an advisory capacity. Testimony at the trial showed that Terry was approximately 89 years old at the time he executed the deed, and had been in failing health for about five years. Often he did not recognize his children and did not know the current day, month, or year. He could not see or hear well and was unable to read or write.

At the time of the conveyance, Terry had been living with his daughter, Sybil Terry, the mother of Clayborn Terry. Apparently Terry resided with his daughter Sybil for a while and then with his daughter, Lillian Borden. He was living with his daughter Lillian at the time of the trial.

The evidence further shows that on April 24, 1973, two and a half weeks before the execution of the deed, at the request of his grandson, Terry was examined by Dr. Hollobaugh. He pronounced him 'quite mentally competent' to execute a deed. Terry testified that he had not placed his mark on the deed. But his grandson and an abstracter who drafted the deed said he marked it himself. The deed was witnesses by two persons, one of whom notarized it.

An appraiser stated the value of the land conveyed would be as much as $300 an acre or about $9,000 total. The grandson testified his offer of $3,000 was accepted by Terry, in lieu of his wish to make a gift, and the money was placed in a bank account under the name of his granddaughter, at his request, so that he would not lose his pension and social security checks.

In response to interrogatories propounded to the jury by the court, the jury determined that, although the grantor was mentally capable to execute the deed in question, he was subjected to undue influence by the grantee. On April 3, 1975, the court entered a decree cancelling the deed. A motion for a new trial was denied.

The main issue in this case is whether there was undue influence. Terry argues that the conveyance was a product of undue influence on the basis that there was a confidential relationship between the parties to the deed and that the consideration was grossly inadequate. We hold that the facts brought forth at the trial established neither the domination by the grandson necessary for undue influence nor the inadequacy of the consideration to set aside the transaction; therefore, the deed is valid.

It is well established that what constitutes undue influence to procure a deed depends on the facts and circumstances of each case. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970). However, undue influence can generally be defined as influence which dominates the grantor's will and coerces it to serve the will of another. Wyatt v. Riley, 292 Ala. 277, 293 So.2d 288 (1974).

When the parties stand in a confidential relationship and the evidence tends to show that the beneficiary is the dominant party, the law raises a presumption of undue influence and places on the beneficiary the burden to repel the presumption when the transaction is assailed. Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878 (1970). Here the parties agree that no presumption of a confidential relationship attends the relationship of a grandfather and grandson.

When no presumption is raised, the burden to prove undue influence is on the one seeking to set aside the deed. Wyatt. Undue influence warranting cancellation of the deed is difficult to prove. Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (1960). In determining dominance, it is not a question of whether the party knew what he was doing, had done, or proposed to do, but how the intention of the grantor was produced. Wyatt.

In this case Terry claims his intent was produced through his grandson's actions. His grandson does not contend that he did not influence his grandfather at some point in time. In fact, he initiated the discussion of a possible transaction by requesting to buy the property several days prior to the execution of the deed.

It is not influence which is charged, but undue influence. Mere suggestion does not constitute undue influence, nor does solicitation suffice unless the grantor be worn out with importunities so that his will gives way. Halman v. Bullard, 261 Ala. 115, 73 So.2d 351 (1954). Here the transaction was discussed only once prior to the execution of the deed, hardly...