94 So. 484 | Ala. | 1922
The bill in this case seeks to cancel the deeds in question *351
both on account of fraud and undue influence; and whether sufficient or not in its allegations as to fraud, it contains equity and was not subject to the demurrer as a bill charging undue influence. In the first place, the facts set out, if proven, would constitute undue influence; but, if the undue influence was charged only by way of a conclusion, it would not render that feature of the bill subject to demurrer. It has been finally settled by this court that a bill seeking relief for undue influence, unlike one for fraud, need not set out the facts constituting the undue influence. Strickland v. Strickland,
The bill being sufficient as for undue influence, whether sufficiently charging fraud or not, was not subject to a demurrer going to the whole bill because of an imperfect averment as to an alternative feature of same. The demurrer as set out on pages 43 and 44 and referred to in the assignments of error go to the whole bill, and not that feature or portion of same which charges fraud, and the trial court did not err in overruling said demurrer. Tillman v. Thomas,
The trial court did not err in declining to permit the respondent to prove by the complainant that she had made a will subsequent to the deeds devising her property to her daughter, as this fact had no material bearing upon the validity of the previous transaction; for, if the deeds were invalid, the motive or purpose in making a final disposition of the land could not inject validity into them, and, if they were valid, the attempted disposition of the property by a will could in no sense affect the validity of same. Moreover, the will was ambulatory and subject to change or revocation at any time during the life of Mrs. Hawkins. Again, the proffered proof tended to strengthen rather than weaken the evidence of John Hawkins, for if no will was made he had an inheritable interest in the land, and was interested notwithstanding Grubbs' mortgage on same. On the other hand, if the land was devised to Mrs. Hewlett, this would cut John off from a right of inheritance and there was no offer to prove that he was to be secretly benefited through the devise to Mrs. Hewlett. Nor could the exclusion of this evidence be injurious to the respondent because reflecting on the evidence of Mrs. Hewlett by showing interest as the record abundantly showed that she was interested. Furthermore, Mrs. Hewlett did not testify to a single material fact that was seriously controverted.
The rule is well established in this state that a donation from the parent to a child, alone and of itself, will raise no presumption of undue influence, since, in the absence of evidence to the contrary, the parent is presumably the dominant party; yet when the circumstances afford a reasonable inference that the domination of the parent has ceased the presumption of the fairness of the transaction ceases and it is then incumbent upon the child to establish the fairness of same. Gibbons v. Gibbons,
The evidence in the case at bar shows that, at the time of the execution of the deeds in question, Mrs. Hawkins was a very old and infirm woman 80 years of age, lived alone with her son John, the real donee or vendee, and that she had recently sustained a personal injury and was so weak or feeble that she was held up or supported in bed when signing the papers. The transaction was almost or quite clandestine and took place a dark muddy night in the presence only of the interested parties and a notary brought there by one of them from another precinct and was so arranged as to miss Mrs. Hewlett, who had been spending the day with her mother, Mrs. Hawkins. It also appears that the servants were ordered out of the room, and some of the evidence shows that Grubbs assured Mrs. Hawkins that she would never want for anything. The proof not only fails to show that Mrs. Hawkins had independent advice, but tends to show that the interested parties, her son John and neighbor and friend Grubbs, saw to it that her daughter or no one else should know about it and that she acted under their influence. There was also an inference that the conveyance of the village lot and personal property was an afterthought of John and Grubbs, one or both, even if they had previously discussed and agreed upon the disposition of the farm, as they in no wise figured in the consideration, as the check for Mrs. Hewlett was for only one-third of the agreed price for the farm less the incumbrance and were not included in the deed which the respondent Grubbs had prepared pursuant to the claimed understanding with Mrs. Hawkins. At least, there was evidence to support this theory of the case, and the trial court saw and heard the witnesses, thereby having an advantage over this court in arriving at a conclusion upon the facts, and its decree is like unto the verdict of a jury. Senior v. State,
It is urged by the appellant that the trial court erred in so much of the decree as canceled the mortgage from John Hawkins to Grubbs, as the same was not attacked by averment or prayer. It is sufficient to say that the primary equity of the bill is to clear the complainant's title to the land by the removal of certain clouds held by these respondents, and, if they have been multiplied by subsequent conveyances from the one to the other, they are mere incidents to the original deeds and, not being invalid upon their face, should be canceled as a cloud and the cancellation of same is thoroughly consistent with the main equity and purpose of the bill, and, this being so, relief was properly awarded under the general prayer. Mobile Co. v. Gass,
The decree of the circuit court is corrected as above indicated, and as corrected is affirmed.
Corrected and affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.
