7 So. 2d 259 | Ala. | 1942
The suit of complainants was for the cancellation of a deed from J. W. Haithcock and wife to J. W. McKinney, and sought a sale for division of the lands described in the bill.
Under the last amendment to this pleading, the contention of the complainants was the incapacity of the grantor to make the deed which is of date of October 31, 1934.
There were answer and a cross bill, paragraph four of said cross bill reading as follows: "And alleges that the lands described in paragraph two of this answer as amended was given to this respondent by the said J. W. Haithcock and Frances Haithcock to take care of them during the remainder of their lives; and this respondent avers that he and his wife have gone to much expense and trouble in caring for them and in carrying out the agreement of the parties to said deed and that they and neither of them have been paid for such services and this respondent is advised and hence avers that this court if he should find the said deed dated October 31st, 1934, not valid that the court will make the heirs of the said John Haithcock specifically perform the agreement made and entered into by the parties and that title will be decreed to this respondent as provided in said deed at the death of the said Frances Haithcock."
The complainants answered the cross bill and denied the allegations of the same.
The trial court rendered a decree cancelling the deed as the same affected the lands of J. W. Haithcock. It is recited in the decree:
"All the evidence, including the deposition of Frances Haithcock, was taken orally before the court.
"The court finds from the evidence that the physical and mental condition of J. W. Haithcock alias Bud Haithcock was such that he was a non compos mentis when the deed was executed by J. W. Haithcock and Frances Haithcock to J. W. McKinney on or about the 31st day of October, 1934, which deed purports to convey to J. W. McKinney several hundred acres of land described in the bill of complaint. Therefore, it is ordered, adjudged, and decreed by the court that the said deed of J. W. Haithcock and Frances Haithcock to J. W. McKinney, dated October 31, 1934, is null and void in so far as it purports to convey to J. W. McKinney the lands owned by J. W. Haithcock on or about October 31st, 1934.
"The court further finds from the evidence that Frances Haithcock owned 290 acres of the land described in the said deed of J. W. Haithcock and Frances Haithcock to J. W. McKinney executed and delivered on October 31st, 1934, she having acquired title to said 290 acres of land by a deed executed and delivered by J. W. Haithcock to his wife, Frances L. Haithcock on or about January 15th, 1897, and recorded in Deed Record Book No. 64, Page 173 in the Office of the Probate Judge of Franklin County, Alabama. Therefore, it is hereby ordered, adjudged and decreed by the court that the said deed of J. W. Haithcock and Frances Haithcock to J. W. McKinney dated October 31st, 1934, is a legal conveyance to J. W. McKinney to the 290 acres owned by Frances Haithcock and that J. W. McKinney is now the legal owner of all the right, title, claim and interest of Frances Haithcock in and to the said 290 acres of land, subject, however, to the life estate reserved by Frances Haithcock in said deed dated October 31st, 1934, to J. W. McKinney, which said 290 acres of lands are described as follows:
" 'NW-1/4 of Sec. (36) Township (7) Range (14) acres 160. 130 A in SE-1/4 Sec. (35) Township (7) Range 130. Total, 290.
" 'Two Hundred and Ninety acres more or less.'
"The court is of the opinion that there is not sufficient evidence before the court for the court to intelligently ascertain the dower and homestead rights of the widow, Frances Haithcock, in the lands owned by J. W. Haithcock at the time of his death. * * * *."
The rule that prevails in this jurisdiction, where the finding is based upon testimony given ore tenus before the trial court, obtains. Hodge v. Joy,
See Bidwell v. Johnson,
The deed in question is of date of October 31, 1934, and the grantor (husband) died a day or so later. The wife in that conveyance lived until after the appeal was taken in the Supreme Court, and her death was suggested to this court on submission of the cause. See Cox v. Dodd, ante, p. 37,
The question of the widow's quarantine right to obtain under the statute of force at the date of the death of the husband [Bishop v. Johnson, post, p. 551,
The rule touching certain conveyances is stated in Kramer v. Weinert,
In Watkins v. Yeatman,
"The true rules of the common law (and our courts have adopted them) on the particular subject now in hand are stated in Slaughter v. Heath,
"We have carefully selected the above quotation from sentences which appear in the above case because they succinctly express the law of this state as it has always been declared by our courts to exist. * * *"
In Leeper, Ex'r, etc., v. Taylor and Wife,
Such was the finding in the above case, and it is further therein observed: "* * * It is said by the text-writers on this branch of legal learning, 'That the influence to vitiate the act must amount to force and coercion, destroying the free-agency.' It must not be the influence of *496
affection, or attachment, or the desire to gratify the wishes of another. And there must be evidence of such importunity, or coercion, as could not be resisted, so that the motive impelling the testator was tantamount to force or fear. — 1 Williams Ex'rs., 42; 1 Jar. on Wills, 39; Taylor v. Kelly,
Such are the rules that obtain in this jurisdiction at this time.
At the time the conveyance here assailed was executed by Mr. Haithcock and his wife to the appellant J. W. McKinney, there were three disinterested parties present — Dr. Thorn, the family physician, attending the deceased in his last illness; Miss Evelyn Reid and Arvey Scott. The record shows that prior to the execution of the conveyance, Mr. Haithcock had stated to the doctor that he wanted the appellant and his wife Cora Belle to have his property. To the same effect was the testimony of Alex Bohannon, the father of appellant and other witnesses, including Robert and John McKinney, the wife of appellant and Mr. and Mrs. Overton. The record further shows the agreement of Mr. McKinney and his wife Cora Belle had with grantors when they moved on the place, that if grantees would come and live with them (the Haithcocks) that they would give them (the McKinneys) the conveyance to the land in question.
The record further shows at the time of the execution of the conveyance that Mr. Haithcock, though physically disabled, had sufficient mental capacity to dispose of his property, as was done by the conveyance. This is shown by the testimony of the physician, the acting officer (Miss Evelyn Reid) and Mr. Hamilton and Arvey Scott.
It is the rule in this state that the burden was on the complainants to establish the mental incapacity of the grantor at the time of the transaction resulting in the conveyance in question, now complained of. The present Chief Justice, writing for the court in Harris et al. v. Bowles et al.,
"Upon the question of mental capacity, in Stanfill v. Johnson,
" 'The law presumes every one to be sane until the contrary is proved; and it is unsoundness and incapacity to understand the business transacted, as contradistinguished from mere weakness, which must be proved, in order to avoid a conveyance.'
"The same language was stated in somewhat varying terms in Frederic v. Wilkins,
We have indicated that mere weakness of intellect is not sufficient to incapacitate. Watkins v. Yeatman,
It is further well established by this court that a deed or will being made in conformity to a fixed determination, freely entertained and expressed for years, is the strongest proof of capacity to make such a deed or will. The testimony of Yancey Baggett concludes with the statement that "all the community" knew that Mr. Haithcock would convey the property to appellant. Stroup v. Austin,
It is further the rule that an agreement obligating a grantee to care for the grantor as long as he lives, and such agreement is supported by the facts, is a valuable consideration. Cox v. Hutto,
The record shows that the relation between the grantor (Haithcock) and J. W. McKinney was that of uncle and nephew. We find nothing in the record that this relationship or the action of the parties created a confidential relationship within the rule that obtains. Abrams v. Abrams,
In the last cited case, Mr. Justice Knight said for the court: "* * * So far as the evidence shows to the contrary, it was J. M. Abrams who offered to make the conveyance, and the evidence wholly fails to show that he was moved to make the conveyance by any word or act on the part of *497
the respondents Guy W. and Effie Abrams, or of either of them. The relation between the said Guy W. Abrams and J. M. Abrams was that of uncle and nephew, and there is nothing in this relationship of itself to create a confidential relation. 12 Corpus Juris, 421; 18 Corpus Juris, 240; Noel v. Noel et al. [
Whatever the instrument be called, it was in form and legal effect a deed, and so treated by the trial court. We conclude the matter with the observation that the grantor J. W. Haithcock was sufficiently sound of mind to understand in a reasonable manner the nature and effect of the act which he and wife were doing at the time of their execution of the conveyance here challenged for mental incapacity. Hall v. Britton,
It results from the foregoing that the decree of the trial court of date of October, 19, 1939, holding that at the time of the conveyance to appellant, J. W. Haithcock (the grantor) was non compos mentis, is in error. Said decree is reversed and one here rendered for the appellant, investing J. W. McKinney with the lands conveyed to him by J. W. Haithcock and Frances L. Haithcock on October 31, 1934. The suit is dismissed at the cost of complainants-appellees.
Reversed and rendered.
GARDNER, C. J., and BROWN and FOSTER, JJ., concur.
