Wells v. Wells

• Decision Date: 23 June 1949
• Docket Number: 8 Div. 498.
• Citation: Wells v. Wells, 252 Ala. 390, 41 So.2d 564 (Ala. 1949)
• Parties: WELLS v. WELLS.
• Court: Alabama Supreme Court

41 So.2d 564

252 Ala. 390

WELLS v. WELLS.

8 Div. 498.

Supreme Court of Alabama

June 23, 1949

P W. Shumate, of Guntersville, and Roy D. McCord, of Gadsden for appellant

Scruggs & Scruggs, of Guntersville, for appellee.

LAWSON Justice.

On July 19, 1946, W. R. Wells, appellant, filed a bill against his son, R. S. Wells, appellee, to cancel a deed executed on October 11, 1944, wherein W. R. Wells conveyed to his son, R S. Wells, approximately thirty-two acres of land.Cancellation was sought on three grounds: (1) That although the deed was actually delivered to the grantee, such delivery was conditional and in fact was a delivery in escrow; (2) that the consideration for the deed was the sum of $450 which was never paid; (3) that the deed was executed as a result of undue influence exercised by the son over the father.

The respondent incorporated in his answer several grounds of dumurrer.Eisenberg v. Stein,222 Ala. 576, 133 So. 281;Baggett Mercantile Co. et al. v. Vickery,213 Ala. 427, 105 So. 207.

Respondent appealed to this court from a decree overruling the demurrer.In Wells v. Wells,249 Ala. 649, 32 So.2d 697, it was held that the trial court correctly overruled the demurrer, in that it was addressed to the bill as a whole and that the bill had equity in so far as it sought cancellation on the ground of undue influence.But it was held that otherwise, grounds for cancellation did not appear in the bill.In that connection it was said:

'We interpret the averments of the amended bill as disclosing the execution of the deed to defendant, and that although the deed was actually also delivered to defendant, the delivery was conditional and, indeed, what might well be termed a delivery in escrow.But our authorities are uniform to the effect that a delivery of a deed complete on its face to the grantee, as here, is an absolute delivery, whatever conditions may be orally annexed to qualify or postpone its operation.The general rule is that the delivery of a deed to a grantee cannot be a delivery in escrow.Randolph v. Randolph,245 Ala. 689, 18 So.2d 555.This aspect of the bill, therefore, was subject to the objection interposed.

'In the second paragraph is the averment that the consideration for the deed was the sum of four hundred fifty dollars, which has never been paid.But though this would furnish ground for the enforcement of a vendor's lien, it would not justify the cancellation as here sought.'249 Ala. 650-651, 32 So.2d 698.

It does not appear that either the bill or answer has been amended since the decision of this court in Wells v. Wells, supra.Submission was had on testimony taken before the register.

The trial court rendered a decree denying the relief sought by complainant and dismissed the bill.This appeal is from that decree.

There was much evidence taken tending to show that the consideration expressed in the deed had never been paid.But, as pointed out in Wells v. Wells, supra, the fact that the consideration has not been paid does not justify cancellation of the deed.Complainant does not by averment or proof seek to establish a vendor's lien.

The evidence as it relates to the delivery of the deed, considered in the light most favorable to complainant, shows a conditional delivery.As shown in Wells v. Wells, supra, this fact does not justify cancellation of the deed.

The evidence is entirely insufficient to warrant cancellation of the deed on the ground that its execution resulted from undue influence exercised by the son over the father.The complainant utterly failed to prove any act or course of conduct on the part of the respondent which tends to show any undue influence exercised by the latter to secure the execution of the deed....