Opinion
8 Div. 498.
June 23, 1949.
Appeal from Circuit Court, Marshall County; J. S. Stone, Judge.
P. W. Shumate, of Guntersville, and Roy D. McCord, of Gadsden, for appellant.
Confidential relations existed between the parties. Floyd v. Green, 238 Ala. 42, 188 So. 867; Boney v. Hollingsworth, 23 Ala. 690; Dowe v. Farley, 206 Ala. 421, 90 So. 291. The burden rested on the party claiming under the deed to prove satisfactorily that it is just, fair and equitable in every respect. Floyd v. Green, supra; Spiva v. Boyd, 206 Ala. 536, 90 So. 289; Barkley v. Boyd, 211 Ala. 50, 90 So. 196; Bank of Hartford v. Buffalow, 217 Ala. 583, 117 So. 128; Gibbons v. Gibbons, 205 Ala. 636, 88 So. 833. Delivery is an incident to the execution of a deed. The fact of delivery rests in intention. Elsberry v. Boykin, 65 Ala. 336; Randolph v. Randolph, 245 Ala. 689, 18 So.2d 555; 26 C.J.S., Deeds, § 41. Deed to lands for grossly inadequate consideration, by unfair advantage taken of great mental weakness, will be set aside. Pool v. Menefee, 205 Ala. 531, 88 So. 654.
Scruggs Scruggs, of Guntersville, for appellee.
Mere inadequacy of consideration is not sufficient for cancellation of a deed from parent to child. McLeod v. McLeod, 145 Ala. 269, 40 So. 414, 117 Am.St.Rep. 41; 26 C.J.S., Deeds, § 16, page 189. That consideration for deed has not been paid is not ground for cancellation. Wells v. Wells, 249 Ala. 649, 32 So.2d 697; Sellers v. Knight, 185 Ala. 96, 64 So. 329; 26 C.J.S., Deeds, § 21, page 195. Delivery of deed complete on its face to grantee is absolute delivery, whatever conditions may be orally annexed to qualify or postpone its operation. Ordinarily passing of deed into custody and keeping of grantee constitutes delivery. Wells v. Wells, supra; Alford v. Henderson, 237 Ala. 27, 185 So. 368; Simmons v. Simmons, 78 Ala. 365; Fireman's Ins. Co. v. McMillan, 29 Ala. 147. Undue influence in procurement of deed is a question of fact. McCormick v. McCormick, 221 Ala. 606, 130 So. 226. Complainant had burden of proving undue influence on part of respondent. Hassell v. Hassell, 201 Ala. 190, 77 So. 716; McLeod v. McLeod, 145 Ala. 269, 40 So. 414, 117 Am.St.Rep. 41; Lee v. Menefield, 249 Ala. 407, 31 So.2d 581.
On July 19, 1946, W. R. Wells, appellant, filed a bill against his son, R. S. Wells, appellee, to cancel a deed executed on October 11, 1944, wherein W. R. Wells conveyed to his son, R. S. Wells, approximately thirty-two acres of land. Cancellation was sought on three grounds: (1) That although the deed was actually delivered to the grantee, such delivery was conditional and in fact was a delivery in escrow; (2) that the consideration for the deed was the sum of $450, which was never paid; (3) that the deed was executed as a result of undue influence exercised by the son over the father.
The respondent incorporated in his answer several grounds of demurrer. Eisenberg v. Stein, 222 Ala. 576, 133 So. 281; Baggett Mercantile Co. et al. v. Vickery, 213 Ala. 427, 105 So. 207.
Respondent appealed to this court from a decree overruling the demurrer. In Wells v. Wells, 249 Ala. 649, 32 So.2d 697, it was held that the trial court correctly overruled the demurrer, in that it was addressed to the bill as a whole and that the bill had equity in so far as it sought cancellation on the ground of undue influence. But it was held that otherwise, grounds for cancellation did not appear in the bill. In that connection it was said:
"We interpret the averments of the amended bill as disclosing the execution of the deed to defendant, and that although the deed was actually also delivered to defendant, the delivery was conditional and, indeed, what might well be termed a delivery in escrow. But our authorities are uniform to the effect that a delivery of a deed complete on its face to the grantee, as here, is an absolute delivery, whatever conditions may be orally annexed to qualify or postpone its operation. The general rule is that the delivery of a deed to a grantee cannot be a delivery in escrow. Randolph v. Randolph, 245 Ala. 689, 18 So.2d 555. This aspect of the bill, therefore, was subject to the objection interposed.
"In the second paragraph is the averment that the consideration for the deed was the sum of four hundred fifty dollars, which has never been paid. But though this would furnish ground for the enforcement of a vendor's lien, it would not justify the cancellation as here sought." 249 Ala. 650-651, 32 So.2d 698.
It does not appear that either the bill or answer has been amended since the decision of this court in Wells v. Wells, supra. Submission was had on testimony taken before the register.
The trial court rendered a decree denying the relief sought by complainant and dismissed the bill. This appeal is from that decree.
There was much evidence taken tending to show that the consideration expressed in the deed had never been paid. But, as pointed out in Wells v. Wells, supra, the fact that the consideration has not been paid does not justify cancellation of the deed. Complainant does not by averment or proof seek to establish a vendor's lien.
The evidence as it relates to the delivery of the deed, considered in the light most favorable to complainant, shows a conditional delivery. As shown in Wells v. Wells, supra, this fact does not justify cancellation of the deed.
The evidence is entirely insufficient to warrant cancellation of the deed on the ground that its execution resulted from undue influence exercised by the son over the father. The complainant utterly failed to prove any act or course of conduct on the part of the respondent which tends to show any undue influence exercised by the latter to secure the execution of the deed.
But appellant, complainant below, contends that in view of the confidential relationship existing between the grantor and the grantee that it was incumbent upon the grantee to show that the deed was not executed as a result of undue influence exercised by him. True, the relation of parent and child is per se a confidential relationship, but it is always presumed, prima facie, that in all transactions between them the parent is the dominant party, and that the transactions are free from undue influence. Hawthorne et al. v. Jenkins et al., 182 Ala. 255, 62 So. 505, Ann.Cas.1915 D, 707; Wilson v. Payton et al., 251 Ala. 411, 37 So.2d 499; Tipton et al. v. Tipton, 249 Ala. 537, 32 So.2d 32. In such case the burden is upon the complainant to overcome this presumption, and to reasonably satisfy the court that time and circumstances have reversed the order of nature, so that the dominion of the parent has not merely ceased, but has been displaced by subservience to the child. Hawthorne et al. v. Jenkins et al., supra; Wilson v. Payton et al., supra; Tipton v. Tipton, supra.
We are satisfied from the evidence before us that neither age nor physical weakness had materially impaired the mental vigor and moral independence of W. R. Wells when he made this deed. Although he was sixty-seven years of age at the time the deed was executed and was somewhat deaf and unable to do the same amount of work that he could as a young man, the evidence fails to show that he was in any way physically helpless and dependent. Likewise, there is not even a suggestion in the record that he ever relied upon the counsel of his son, R. S. Wells, or ever deferred to his judgment in business or other matters. In fact, we think the evidence tends to show that he was not in the least degree subject to his influence and there is no proof tending to show that the son ever attempted to influence him.
We have considered all the evidence, but it is neither practical nor profitable to further discuss it here. We are clear to the conclusion that the evidence does not warrant the cancellation of the deed on the ground that it was procured as a result of undue influence exercised by the grantee.
The decree is affirmed.
Affirmed.
BROWN, FOSTER, and STAKELY, JJ., concur.