Tipton v. Tipton

• Decision Date: 31 July 1947
• Docket Number: 4 Div. 416.
• Citation: 32 So.2d 32,249 Ala. 537
• Parties: TIPTON et al. v. TIPTON.
• Court: Alabama Supreme Court

32 So.2d 32

249 Ala. 537

TIPTON et al. v. TIPTON.

4 Div. 416.

Supreme Court of Alabama

July 31, 1947

Rehearing Denied Oct. 16, 1947.

Murphy & Cook and E. O. Baldwin, all of Andalusia, for appellants.

Ralph A. Clark, of Andalusia, for appellee.

LAWSON Justice.

This is an appeal from a final decree of the circuit court of Covington County, in equity, wherein that court refused to cancel a deed.

J. J Tipton, late a citizen of Covington County, died intestate in that county on or about July 31, 1944, when nearly 81 years of age. He left surviving him his second wife, Mrs. Naomi Tipton, and four sons and a daughter by his first wife. A daughter of a deceased daughter also survived.

On April 13, 1944, approximately three and a half months prior to his death, J. J. Tipton and wife, Naomi, executed a deed to his son, G. V. Tipton, conveying to the later approximately 107 acres of land for a 'consideration of One and no/100 Dollars, and love and affection.' The deed contained the following reservation: 'It is agreed and understood by and between the parties to this conveyance that the grantors herein reserve a life interest in the lands herein conveyed and they reserve the possession and control over same as long as they live and upon the death of both grantors herein title and possession shall pass absolutely to the grantee.'

As before indicated, the purpose of the instant proceeding is to have the said deed of April 13, 1944, declared null and void and cancelled. All of the survivors of said J. J. Tipton appear to be parties to the suit except the widow, Naomi who, under the amended pleadings, does not appear to be a party. Since the execution of the deed she has conveyed all her interest therein to G. V. Tipton. The complainants in the amended bill are three of the surviving sons, J. W. (Walter) W. A. (Albert), and J. E. (Emmett) Tipton, the surviving daughter, Mrs. Lillie Blackwell, and the granddaughter, Mrs. Helen Scott. The grantee in the said deed, G. V. (Victor) Tipton, the other surviving son, is the, respondent under the amended bill. The sons will sometimes hereinafter be referred to by the name set out above in parentheses after their initials.

The grounds for cancellation of the deed as set up in the amended bill are (1) undue influence and (2) mental incapacity. As to undue influence, it is alleged in substance that on and prior to April 13, 1944, the day on which the said deed was executed, J. J. Tipton was in poor, feeble, and constantly declining health, and was confined to his bed most of the time; that he was a very old man, weak mentally as well as physically; that a confidential relationship existed between respondent, G. V. Tipton, and his father, J. J. Tipton; that because of his age and physical and mental weakness, the said J. J. Tipton was under the influence and dominion of the respondent, G. V. Tipton, in whom the said J. J. Tipton reposed confidence and trust; that the said deed was executed as a result of undue influence exerted by the respondent, G. V. Tipton, on his father, the said J. J. Tipton. As to mental incapacity, the amended bill in substance alleges that J. J. Tipton was a very old man and that on and prior to the day the said deed was executed the said J. J. Tipton was of unsound mind and his mental condition was such that he was entirely incapable of understanding the purport and effect of such deed, and was incapable of transacting any business of the nature of such deed; that respondent, G. V. Tipton, was fully aware of the mental and physical incapacity of the said J. J. Tipton.

The sufficiency of the amended bill was not challenged by demurrer. Respondent G. V. Tipton answered, admitting the execution of the deed and that his father was an elderly man at the time of its execution. However he specifically denied all material averments as to undue influence or mental incapacity.

Submission was had upon testimony taken orally before a commissioner and not before the court rendering the decree. When causes are thus tried in the lower court, it is the duty of this court to sit in judgment upon the evidence. Cochran v. Cochran, 247 Ala. 588, 25 So.2d 693; Floyd v. Green, 238 Ala. 42, 188 So. 867.

The question of undue influence depends upon the facts and circumstances of each particular case. Floyd v. Green, supra; Barkley v. Boyd et al., 211 Ala. 50, 99 So. 196. It is a species of constructive fraud, difficult of proof, with much latitude allowed in the testimony. Barkley v. Boyd et al., supra; Pilcher et al. v. Surles, 202 Ala. 643, 81 So. 585; Shipman v. Furniss, 69 Ala. 555, 44 Am.Rep. 528.

In cases such as this where a court of equity is called upon to cancel a deed on the ground of undue influence alleged to have been exerted by the grantee over the grantor, the rule is well established that 'where confidential relations exist, the burden of proving that the transaction was fair, free from undue influence, fraud or deceit or misrepresentations, and in the case of deeds the grantor, had disinterested, independent and competent advise, is cast upon the beneficiary in such confidential relation.' Floyd v. Green, supra [238 Ala. 42, 188 So. 871]. To like effect are the following decisions of this court: Worsham v. Johnson, 231 Ala. 265, 164 So. 381; Verner v. Mosely, 221 Ala. 36, 127 So. 527; Dowe v. Farley, 206 Ala. 421, 90 So. 291; Gibbons et al. v. Gibbons, 205 Ala. 636, 88 So. 833.

The relationship of parent and child is confidential. Worsham v. Johnson, supra; Gibbons et al. v. Gibbons, supra. But our cases recognize that gifts and bequests flow naturally from parent to child in accordance with the instincts and common practice of mankind, Therefore, while the relation of parent and child is per se confidential, yet the presumption prevails in this state that the parent is the dominant spirit, and in the absence of evidence other than the mere voluntary gift and confidential relationship, the presumption is that the transaction was free from undue influence. Worsham v. Johnson, supra; Dolberry v. Dolberry, 153 Ala. 434, 44 So. 1018; McLeod v. McLeod, 145 Ala. 269, 40 So. 414, 117 Am.St.Rep. 41.

However such presumption is not conclusive. The rule in this regard is stated in Dowe v. Farley et al., supra [206 Ala. 421, 90 So. 292], as follows: 'Where it is made to appear by the proof that the child, and not the parent, is the dominant spirit, then the burden of proof is shifted to the former to establish the fairness of the transaction, and that it was not the result of undue influence.' See Keeble v. Underwood, 193 Ala. 582, 69 So. 473, 475; Couch et al. v. Couch et al., 148 Ala. 332, 42 So. 624.

We are clear to the conclusion from the evidence presented in the record before us that the son Victor Tipton, the respondent in this cause, was the dominant spirit. The father was over 80 years of age, deaf, and feeble both in body and mind. The son Victor was about 50 years of age, apparently in good health. He lived close to his father and operated a portion of the latter's farm. The evidence shows that the son Victor handled financial matters for the father and exerted considerable influence over him. The weight of the evidence is unquestionably to the effect that time and circumstances reversed the order of nature and that dominion of the parent finally became subservience to the child.

The confidential relation existing and the grantee, Victor Tipton, being the dominant spirit, the burden was upon him to show the transaction was fair, just, and equitable in every respect.

It only remains to apply the law to the facts presented upon this record. A reference to the evidence in a general way will suffice.

The farm land here involved was the homestead of Mr. J. J Tipton. He had owned and lived on it for many years. Three of his children lived near him--his daughter, Mrs. Blackwell, and his sons Emmett and Victor. It appears that for several years Emmett and his father had not been on good terms. ...