Walker v. WalkerWalker v. Walker
F. M. Wаlker (appellant) filed a bill in equity against his son Daniel L. Walker (appellee) to cаncel a deed executed by him to his son. The basis of the bill is that the consideration for the dеed or a material part thereof was the agreement on the part of the grantee Daniel L. Walker to support the grantor, F. M. Walker, during his lifetime. The court entered a final dеcree denying relief to the complainant. The appeal is from that decreе.
A copy of the deed is attached to the bill as an exhibit and made a part thereof. It is dated March 11, 1944. It recites a *197 consideration of $450. No mention in the deed is made of supрort of the grantor. F. M. Walker was a widower at the time the deed was executed. The grantee, the son of the grantor, is now an inmate of Bryce Hospital for the insane. On the affidavit of F. M. Walker that his son “is a person of unsound mind” the court appointed a guardian ad litem to represent the defendant on the trial of the cause.
The case was submitted for decree on testimony taken before the register acting as commissioner. So the case comes to this court without presumption in favor of the finding of the lower court. Bailey v. McQueеn,
When the consideration of a deed to real estate or a material part of the consideration of such deed is the promise on the part of the grantee to support the grantor during life, the deed may be avoided by the grantor at his election if proper proceedings are taken during the life of the grantor to annul the conveyance. § 15, Title 20, Code of 1940; Bush et al. v. Greer,
Daniel L. Walker, the grantee, while not so adjudicated, is a non compos mentis and has been confined in Bryce Hospital at Tuscaloosa for morе than a year. He was not available to testify in his own behalf or to defend the suit becausе of his mental condition.
The evidence has been carefully considered. There is testimоny tending to support the allegations of the bill, but there is also testimony tending to show that Daniel L. Wаlker paid to his father $300 in cash and turned over to him a mule valued at $150 as part of the cоnsideration for the deed. The grantee’s wife and the minor children, who live on the placе, deny any promise on the part of Daniel L. Walker'with reference to support of the complainant. He is welcome, however, to come and live with them. The deed contains a reservation of a life estate by the grantor, but this is not necessarily inconsistent with an аgreement of the grantee to support the grantor.
The deed is an absolute conveyance on its face. The appellant seeks to vary by parol evidence the clauses of this solemn instrument by showing that the effect was to vest the title in Daniel L. Walker, subject to divestiture by condition subsequent. Hannah et al. v. Culpepper,
We note that the bill was dismissed without prejudiсe. There is no cross assignment of error. So we find it unnecessary to discuss this feature of the dеcree. Obviously appellant has no complaint in this regard.
In its final decree the 'court allowed the guardian ad litem a fee of $100 for his services as such. It is argued that the allowаnce should not stand because there is no evidence to support the allowanсe. Under § 180, Title 7, Code of 1940 the court is authorized to ascertain a reasonable fee to be allowed to the guardian ad litem. The statute sets up no method by which the ascertаinment is to be made. The court has the right to determine the fee by the exercise of its indeрendent judgment upon a consideration of the case as developed by the record without being bound to accept the opinion of witnesses. Willett & Willett v. First National Bank of Anniston, 234 Ala 577,
Affirmed.