Todd v. Sykes

• Citation: 33 S.E. 517,97 Va. 143
• Parties: TODD. v. SYKES.
• Decision Date: 15 June 1899
• Court: Supreme Court of Virginia

33 S.E. 517

97 Va. 143

TODD.

v.SYKES.

Supreme Court of Appeals of Virginia.

June 15, 1899.

CANCELLATION OF DEED—UNDUE INFLUENCE —BURDEN OF PROOF—EVIDENCE.

1. In a suit to set aside deeds as obtained by fraud and undue influence, declarations of the grantor, while inadmissible to prove undue influence, are admissible to show the state of mind of the grantor when the deeds were executed.

2. In a suit to set aside a deed for fraud and undue influence, the burden is on plaintiff to establish such facts.

3. In a suit to set aside a deed for fraud and undue influence, where it is proved that the parties to the deed were mother and son, the burden shifts to defendant to rebut the presumption of fraud.

4. In a suit by a daughter to set aside deeds of the mother transferring all her property to a son, on the ground of fraud and undue influence, there was evidence that the mother had often declared that she intended to divide the property; that after the execution of the deeds, she became melancholy, declared that her son had robbed her and soon after committed suicide; that the son often abused her; and that she seemed to be afraid of him. Defendant, in his answer, alleged that he had paid his mother full value for part of the property, and that the other parts, while in his mother's name, had belonged to him. His witnesses who testified to having seen him pay the different items of consideration not only contradicted each other, but contradicted defendant's answer; their evidence tending to show that he had paid much more than the recited consideration for all the property, including that which he alleged had already belonged to him. At the time of the alleged payments he was insolvent, and there was no trace of the money (amounting to over $S, 000) which he claimed to have paid his mother, although she died a few months thereafter. Held to show undue influence entitling plaintiff to a decree.

Appeal from law and chancery court of city of Norfolk.

Suit by Josephine Sykes against Charles H. Todd. Decree for plaintiff, and defendant appeals. Affirmed.

D. A. Hinton, for appellant.

Burroughs & Bro., for appellee.

CARDWELL, J. This is an appeal by Charles H. Todd from a decree of the law and chancery court of the city of Norfolk setting aside, as fraudulent and void, eight deeds made by Lucinda Todd to her son, the appellant, conveying to him the entire real estate owned by her. The deeds were attacked by appellee, Josephine Sykes, a half-sister of appellant, and a daughter of Lucinda Todd by a former marriage; and the grounds upon which the attack was made were that the deeds were without consideration, and were obtained by the grantee by fraud, deceit, and undue influence. Three of the deeds are dated April 30, 1895, were acknowledged June 5th of the same year, and admitted to record July 20, 1895. The other five bear date and were acknowledged July 16, 1895. Pour of them were admitted to record July 20, 1895; and the other, July 23, 1895.

Of the three deeds of April 30, 1895, one conveys a lot on Chapel lane, in the city of Norfolk, in consideration of $1,200; one conveys lots numbered 61, 63, and 67 on Avenue B, in Huntersville, Norfolk county, in consideration of $750; and the third conveys lots 26, 28, and 34 on the same avenue, in consideration of $750; the total consideration named in these three deeds being $2,700.

The five deeds dated July 16, 1895, convey various pieces of land therein described, for an aggregate consideration of $5,580.

The appellant, Charles H. Todd, the defendant in the court below, filed his answer, denying under oath the various allegations of fraud made in the bill, and alleging that he paid his mother in cash for all of this property, except the Chapel lane lot, which he alleges was originally paid for with his money at the time it was conveyed to his mother, he being the real purchaser thereof, and except that lots Nos. 61, 63, and 67 on Avenue B, in Huntersville, were originally purchased by and conveyed to him, and were subsequently conveyed by him, without consideration, to his mother, he not wishing to hold them in his own name. To this answer the plaintiff in the court below replied generally.

Sixteen witnesses were examined for the plaintiff, and 24 for the defendant; and upon the bill and answer, and numerous exhibits therewith, statements, and agreements, filed in the record, and on the depositions of the witnesses, the court below set aside all of the deeds on the grounds stated.

In considering this case upon its merits, we may, as did the court below, leave out of consideration the various exhibits produced to prove that appellant had been removed from the office of justice of the peace of the city of Norfolk by the council of the city; that he had been indicted for selling liquor to minors, for collecting a fine and failing to return the same, and for failing to pay into court a fine imposed by him; that he was reported to the corporation court of the city of Norfolk by the grand jury for selling liquor on Sunday while a justice of the peace, and for making an agreement to divide fines with the high constable; that the corporation court decided that he was not a fit person to have a license to keep a bar, and revoked it; and that he was found guilty of an assault upon George Scott, a witness for the plaintiff examined in this suit, made since its institution, within a few days after the examination of the witness, and his punishment fixed by a Jury at a fine of $20 and a confinement of 30 days in jail, —the only provocation given his assailant by the witness being the statement to him that he (the witness) had told the truth in his deposition.

We leave out of consideration, also, the declarations of Mrs. Todd, proven, as to force or undue influence used by appellant in securing the conveyances of the property to him, but it is proper to consider her statements as evidence to show her state of mind and condition at the time she executed the conveyances. Wait, Fraud. Conv. § 206, and note.

The burden of proof in this case is on the plaintiff to prove the fraud and undue influence alleged in the bill, and such proof must be clear and convincing, but if indicia of fraud be proved, so that fraud may be presumed from the circumstances and condition of the parties contracting, or if it is proved that the parties stood in an intimate and confidential relation, one to the other, either asparent and child, or in any other way, the burden of proof shifts to the defendant, and he is obliged to repel by strong and clear evidence the presumptions of fraud and undue influence arising from the circumstances of the transaction and the relations of the parties, and in such cases he must prove the truth of the defense set up in his answer. Fishburne v. Ferguson's Heirs, 84 Va. 111, 4 S. E. 575; Hickman's Ex'r v. Trout, 83 Va. 491, 492, 3 S. E. 131; Wait, Fraud. Conv. §§ 225, 271; Bump, Fraud. Conv. §§ 249-256, and note to 67; and Francis v. Cline, 96 Va. 201, 31 S. E. 10.

If, from the relations of the parties and the surrounding circumstances, a doubt is thrown around the payment in good faith of the consideration for the conveyance of the property, the grantee must prove the payment of the consideration (Hickman's Ex'r v. Trout, supra); and when transactions, as in this case, between parent and child, are attacked, the burden of proving good faith and consideration is on the relative who is grantee. Bump, Fraud. Conv. §§ 66, 67, and cases cited in note 8.

It is not necessary to prove fraud by direct and positive evidence. Circumstantial evidence is not only sufficient, but in most cases is the only proof that can be adduced. Armstrong v. Lachman, 84 Va. 728, 6 S. E. 129; Moore v. Dllman, 80 Va. 311; Hickman's Ex'r v. Trout, supra; Saunders v. Parrish, 86 Va. 592, 10 S. E. 748; Ferguson v. Daught-rey, 94 Va, 308, 26 S. E. 822; Hazlewood v. Forrer, 94 Va. 703, 27 S. E. 507; Francis v. Cline, supra.

A transaction may of itself and by itself furnish the most satisfactory proof of fraud, so conclusive as to outweigh the answer of the defendant, and even the evidence of witnesses. Jones v. McGruder, 87 Va. 360, 379, 12 S. E. 792, and authorities cited; Hazlewood v. Forrer, supra.

Among the indicia of fraud, as laid down by the authorities, are false admission of receipt of consideration, absence of means in the grantee, his failure to produce evidence supposed to be within his reach, unusual mode of payment, want of clear proof, etc. Bump, Fraud. Conv. § 66 et seq.; Wait, Fraud. Conv. §§ 42, 63-64, and notes; Hickman's Ex'r v. Trout, supra.

Relationship alone is not a badge of fraud, but calls for close scrutiny, and strengthens presumption arising from other circumstances. Wait, Fraud. Conv. § 242; Bump, Fraud. Conv. § 67; Saunders v. Parrish, supra.

We cannot undertake to review all the testimony dl the various witnesses examined in this case. In fact, it would serve no good purpose to do so. The evidence fully proves the following facts: The grantor in the deeds attacked was the mother of the defendant, the grantee, over 70 years of age. Her son, at the time the deeds were executed, lived with her. They were both persons of bad temper, and had frequent quarrels and alter cations. That he used threats and was guilty of abusive conduct and violence towards his mother on several occasions with reference to her property, or in efforts frequently made by him to get money from her. That she had expressed herself and acted a number of times as if she was in fear and dread of him, though there is some evidence that he was at times kind and considerate of her. That he at times argued with her, and tried to get others to impress upon her, that, if she gave any portion of her property to her daughter, Josephine (appellee), an adopted child of Josephine, against whom he knew his mother had some prejudice, would get it, and held out to his mother the idea that-he (appellant) would take care of Josephine. The...