Bain v. Bain

43 So. 562, 150 Ala. 453, 1907 Ala. LEXIS 369

• Court: Supreme Court of Alabama
• Decided: April 16, 1907
• Status: Published

Opinion

DENSON, J.

This is a statutory action of ejectment, in which the plaintiff seeks to recover an undivided half interest in the lands described in the complaint. The plaintiff and the defendant J. R. Bain are brother^) and the only heirs at law of C. L. Bain, deceased, who was their father. Prior to the death of the deceased, Avhich occurred in the year 1900, he resided with the defendants ; and in 1895, while so residing, he made two deeds, by one.of Avhich he conveyed, to Sobrinie Y. Bain (one of the defendants), the AAdfe of J. R. Bain, 131 acres of the land sued for, and by the other 28 acres to the children of J. R. Baifi and Sobrinie Y. Bain. J. R. Bain and the grantees in the deeds are the defendants in this cause. The contention of the plaintiff on the trial of the cause was that the execution of the deeds was procured by undue influence on the part of the defendant J. R. Bain. That was the sole issue on which the cause was tried. While there are numerous grounds in the assignment of errors, only four are argued and insisted on in the brief of counsel for appellant, and according to the uniform decisions of this court we shall consider only the four grounds (second, eighth, tenth, and thirteenth) insisted upon.

The plaintiff offered to show that, subsequent to the day on which the two deeds were executed, the grantor expressed his dissatisfaction at the way he had disposed of the lands in the deeds, and said he “wanted the lands divided equally between J. R. Bain and W. L. Bain, and that he had to make the deeds as they were to get rid of J. R. Bain.” It has been expressly ruled by this court that declarations made by the grantor, subsequent to the full execution of the deed, are not evidence which can be looked to for the purpose of impeaching the deed. Especially is this true where it is not insisted that the grantees stood in any relation of confidence or possessed any peculiar influence over the grantor.—Adair v. Craig, 135 Ala. 332, 33 South. 902, and cases there cited. Consequently the court committed no error in not allow” ing proof of the declarations of the grantor made to witnesses C. P. Bain .and W. G. Scarbrough.

In respect to the court’s refusal to allow in evidence the file of chancery papers in the cause of Charles L. Bain v. Sobrinie V. Bain et al., if the papers were competent against Sobrinie V. Bain on the idea that she agreed that the bill in that cause should be filed (a point wre do not decide), yet there are defendants other than Sobrinie V., and there wras no offer to prove that they agreed to the filing of the bill. and/ there was no offer to limit the file of papers, as evidence, to the defendant Sobrinie V. Bain. The court, therefore, for this reason, properly sustained the objection to the file of papers.

Charge 1 requested by the defendant, was properly refused. Besides being'argumentative, the facts'hypothesized in the charge fall short of maldng a- case of confidential relations between tbe father and son, sncli as would shift the burden of proof to the grantees to show that the deeds were voluntarily made.—McLeod v. McLeod, 145 Ala. 269, 40 South. 414.

No error appearing in the assignments insisted on, the judgment of the city court is affirmed.

Affirmed.

Tyson, C. J., and Haralson and Simpson, JJ., concur.