10723 | S.C. | Oct 10, 1921
Lead Opinion
October 10, 1921. The opinion of the Court was delivered by This is an appeal from a Decree of Judge Moore confirming the report of Master Lanham ordering the cancellation of a deed of conveyance of real estate from plaintiff to defendant, duly recorded. The action was for that purpose, and after issue joined the case was referred to the Master, who made his report, recommending the same.
The report of the Master should be incorporated in the report of the case. Defendant appeals, and by six exceptions challenges the Judge's conclusions and seeks reversal of the same.
The Master and Circuit Judge having concurred in their findings of fact, the Circuit Decree must be affirmed, unless the appellant can convince this Court that their findings are against the weight of the testimony.
The laity, in part, and some at the bar, seem to think that when a father conveys to a child there is a presumption of fraud, wrong, or undue influence. Such is not the law. There is no presumption, from the mere fact the parent deeds property to a child, of undue influence, overreaching, wrong, or fraud, that shifts the burden to the child to show there was none. The peculiar circumstances and facts of each case must determine this. *460
A deed ordinarily, when properly executed, is presumed to be what it purports to be. And the party assailing it is charged with the burden of rebutting this presumption and proving his case. He who avers and charges must ordinarily prove. The burden of proof is on him. Where there is a fiduciary relation between parties, and a business transaction occurs between them, and the superior party obtains the advantage, or a possible benefit, equity will closely scrutinize the transaction and raise a presumption against the validity of the same and throw the burden on him to prove good faith.
Where a person is of weak understanding, if the proof is of such weakness as incapacitates or dangerously near borders on incapacity, if the nature of the contract warrants the conclusion that it was not the exercise of deliberate judgment, but that the judgment of another has been imposed in the place of his judgment, by cunning, artifice, overpersuasion, and undue influence, the contract will not be upheld. In the case at bar it is not one of principal and agent; it is of father and son.
The son did not live with his father; he lived in another county; he did not start the negotiations which ended in the conveyance; the father did. The family knew what was going on in reference to the matter, including the "in-laws." There was no concealment as to what was going on.
There is no doubt but that the plaintiff is old and had physical infirmities, due to age, but we cannot conclude from his evidence, and that of others, that he was mentally incapacitated to such an extent as not to know what he was doing, and that his solemn deed of conveyance should be set aside; that he should be allowed to get out of what some of his family and his neighbors think to be a bad trade on his part. *461
The facts of the case were not such as were the facts in Craddock v. Weekly,
The consideration was a valuable one; the deed was properly executed and delivered; no concealment; a neighbor drew the deed; it was properly witnessed. There is no preponderating evidence of fraud, undue influence, or overpersuading, such as to overreach the father and substitute the judgment of the son for that of the father; in executing the deed the father exercised his will and judgment, and should not, under the evidence, circumstances, and facts, be allowed to repudiate his solemn act.
The exceptions are sustained and judgment reversed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur.
Dissenting Opinion
I am satisfied that the findings of the Master, who had all the witnesses before him, concurred in by the Circuit Judge upon the facts and the law of the case, are not overborne by the testimony for the defendant, but are supported by the weight of the testimony.