80 Fla. 243 | Fla. | 1920
By this suit appellees seek to have certain deeds declared to be void and of no effect and delivered up to be cancelled.
There was a general demurrer to the bill and special demurrers were interposed to the fifth and seventh, ninth and tenth and eleventh paragraphs. There was an order sustaining the demurrer as to the eleventh paragraph and overruling it as to the remainder of the bill. Both complainants and defendants entered an appeal from such order to this court. The grounds of the demurrer to the fifth and seventh paragraphs are, in substance, (1) that no facts are shown which exhibited any undue influence by the grantee over the mind of the grantor; (2) that it does not appear that said grantor was deprived of his free agency; (3) nor that the execution of the deeds described therein was against his wish or desire; (4) nor that the will of the said grantee was substituted for the will of the grantor. The grounds of the demurrer to the ninth and tenth paragraphs are the same as the grounds of the demurerr to the fifth and seventh paragraphs. The grounds of the demurrer to the eleventh paragraph are, in substance, (1) that it appears that the deeds described, therein were delivered to a third person without any reservation on the part of the said grantor to retain control of such deeds; (2) that it does not appear how the said deeds were subject to the direction
There is a prayer that the deeds described be declared to be void and of no effect' and delivered up to be can-celled, for an injunction against any incumbrance or sale of the property, a receiver to take charge of such property, an accounting and for general relief.
The allegations of undue influence are contained in the fifth and seventh and ninth and tenth paragraphs of the bill. 'These paragraphs are as follows:
“5. That said John N. Cams, Sr., was naturally a kind, comforting, thoughtful and affectionate husband and father; that he continued to be such kind, comforting, thoughtful and affectionate husband and father up to a period some eight years prior to his death, when the defendant, Mrs. Annie May Pratt, who was then unmarried and known as Annie May Cams, succeeded in instilling counter influences in" the life and mind of her' said father by falsely persuading her father that his wife, the mother of the said defendant, Mrs. Annie May Pratt, and of your orators, was of unsound mind and was unreasonable and over-exacting in asking for care, comfort' and support, and that your orators, the brothers of saifi defendant, Mrs. Annie May Pratt, were not worthy of the confidences of, or even of association with, or of communication to or from their said father, and your orators further show unto your Honor that said defendant' Mrs. Annie May Pratt continuously endeavored, by such false persuasions and representations aforesaid, to influence her said father and the father of your orators against Ms wife and sons, and that said defendant, Mrs. Annie May Pratt, continuously endeavored to assume
“7. That by reason of the fact that said purported deed, copy of which is hereto attached, marked ‘Exhibit A,’ was obtained by undue influence as aforesaid, the same is null and void, and of no effect, and these complainants are entitled to receive and have the same set aside, delivered up and cancelled.”
“9. That said last mentioned deed, copy of which is hereto attached and marked ‘Exhibit B,’ was executed
“10. That, by reason of the fact that said deed, copy of which is hereto attached, marked ‘Exhibit B,’ was obtained by undue influence, as aforesaid, the same is null and void and of no effeffct, and these complainants are entitled to receive and have the same set aside, delivered up and cancelled.”
It is well settled that when a party seeks to have a deed declared to be void and delivered up to be cancelled on the ground of undue influence exerted over the mind of the grantor he must plead the facts constituting such undue influence, the rule of pleading in such cases being the same as in cases of fraud. 31 Cyc. 55; Jackson et al v. Rowell et al, 87 Ala. 685, 6 South Rep. 951; Barksdale et al v. Davis et al, 114 Ala. 623, 22 South. Rep. 17; Ellis et al v. Crawson, 147 Ala. 294, 41 South Rep. 942; Frick v. Kabaker, 116 Ia. 494, 90 N. W. Rep. 498; Kelley et al v. Perrault et al, 5 Idaho 221, 48 Pac. Rep. 45; Heathcote v. Fairbanks, Morse & Co., 60 Fla. 97, 53 South. Rep. 950.
The term “undue influence” is not regarded as being susceptible of precise definition, but the authorities uniformly hold that undue influence, in order to render a deed void, must be of such a character as to overcome
It may be that the facts constituting the alleged undue influence could be more fully set out, yet, in view of the allegations that the deeds of conveyance were made without consideration, that the grantor and grantee were parent and child, and that undue influence was exerted over the grantor in the execution of the deeds, such statements of ultimate facts or of conclusions not being negatived by the specific facts and circumstances alleged, the demurrer to the paragraphs now under consideration was properly overruled, since on the admissions of the demurrer it does not appear as matter of law that undue influence was not used and under the allegations a case entitling the complainant to relief may be made by appropriate and sufficient evidence showing that in effect the grantee’s will was substituted for that of the grantor in the execution of the deeds. Phifer v. Abbott, 73 Fla. 402, 74 South. Rep. 488; Johns v. Bowden, 68 Fla. 32, 66 South. Rep. 155.
Paragraph eleven of the bill is as follows: “And your orators further show unto your Honor that said purported deed, copy of which is hereto attached and marked 'Exhibit B,’ was never delivered by the grantor therein to the said defendant, Mrs. Annie May Pratt, but your orators show that, on the contrary, said John N. Cams, Sr., the grantor in said deed and the father of said defendant, instead of delivering said deed to said
Delivery of a deed is essential to the passing of the title to the property intended to be conveyed to the grantee. The placing of the deed in the hands of a third person for future delivery to the grantee may constitute
In Johns v. Bowden, supra, this court said: “Though the allegations of a bill of .complaint' be abstract and general and largely in the nature of asserted conclusions, yet if under the allegations a case entitling the complainant to relief as prayed can be made by appropriate and sufficient evidence, a general demurrer to the bill of complaint should be overruled.”
In view of the allegations in this paragraph that the deed referred to was, while in the possession of the third person, “subject to the direction and control” of the grantor, taken together with other allegations, we think the paragraph, under the admissions of the demurrer, should be held good.
The order appealed from, in so far as it sustained the demurrer to the eleventh paragraph of the bill, is reversed, otherwise, it is affirmed.