Worsham v. Johnson

• Decision Date: 29 November 1935
• Docket Number: 8 Div. 614
• Citation: Worsham v. Johnson, 231 Ala. 265, 164 So. 381 (Ala. 1935)
• Parties: WORSHAM et al. v. JOHNSON.
• Court: Alabama Supreme Court

164 So. 381

231 Ala. 265

WORSHAM et al. v. JOHNSON.

8 Div. 614

Supreme Court of Alabama

November 29, 1935

Appeal from Circuit Court, Colbert County; J. Fred Johnson, Jr. Judge.

Suit in equity to cancel a deed by Emma Worsham against Gordon Worsham, Jesse Worsham, and Claude Worsham. From a decree for complainant, respondents appeal. (Revived, on death of appellee, in name of John W. Johnson, as administrator of the estate of Emma Worsham, deceased.)

Affirmed.

Bradshaw & Barnett, of Florence, and Kirk & Rather, of Tuscumbia, for appellants.

John E Deloney, Jr., of Tuscumbia, for appellee.

GARDNER Justice.

The bill seeks the cancellation of a deed executed by complainant to defendants, who were her sons, conveying certain real estate therein described, and from a decree of cancellation defendants prosecute this appeal.

We think the bill is properly to be interpreted as one seeking relief on the ground of undue influence, and sufficient for that purpose as against any assignments of demurrer interposed thereto. Pilcher v. Surles, 202 Ala. 643 81 So. 585; Alexander v. Gibson, 176 Ala. 258, 57 So. 760.

The relationship of parent and child is confidential (McLeod v. McLeod, 145 Ala. 269, 40 So. 414, 117 Am.St.Rep. 41; Dolberry v. Dolberry, 153 Ala. 434, 44 So. 1018) and so likewise that of principal and agent. Waddell v. Lanier, 62 Ala. 347.

While presumably the parent is the dominant party (McLeod v. McLeod, supra), yet it may be shown by the proof that the reverse is the case, and the child the dominant spirit ( Couch v. Couch, 148 Ala. 332, 42 So. 624), and this being made to appear in considering a conveyance by the parent to the child, the burden rests upon the latter to repel the presumption of the exercise of undue influence by clear and convincing proof that he acted in good faith, and took no advantage of the parent. Couch v. Couch, supra.

Since the passage of the General Acts of 1915 (page 594), it has been the policy of this court not to enter into any analysis or discussion of the evidence in detail. Pilcher v. Surles, supra. We therefore rest content with a general reference to the proof and a statement of our conclusion thereon.

Complainant, at the time about sixty-six years of age, was frail and had been in bad health for a number of years. More important, however, is the evident fact that her education was most limited, and her ignorance as to any matter of business, and incapacity to fully understand any business transaction without due explanation, are quite apparent. The three boys, ranging between the ages of thirty to forty years, appear to have been reasonably successful, but the son Gordon is described as a good business man, and was evidently the superior of the others. Complainant had much confidence in him. He acted as her agent, looked after her affairs, both before and after her appointment as administratrix of her husband's estate. She had implicit confidence in him, and the evidence indicates would follow his advice in all matters.

We conclude, without further discussion, that the proof very clearly shows his was the dominant mind, and she decidedly the weaker. Pilcher v. Surles, supra; Couch v. Couch, supra.

The burden was upon defendants, therefore, to show their good faith, and that no advantage was taken. The three sons brought complainant nearly forty miles to Florence for the execution of the deed in an attorney's office. The attorney was absent, but the notary who took the acknowledgment testifies to reading the deed and complainant's assent thereto. The recited consideration was $3,400. Nothing was paid, and it seems these sons took the deed, and afterwards had it placed on record. That it was an improvident transaction appears clear to our minds, and needs no discussion. Complainant had no independent advice nor is there other proof offered tending to show complainant fully understood the purport of the transaction, and that it represented her own voluntary act. Cooley v. Stringfellow, 164 Ala. 460, 51 So. 321; Mullen v. Johnson, 157...