Gibbons v. Gibbons

88 So. 833, 205 Ala. 636, 1921 Ala. LEXIS 572

• Court: Supreme Court of Alabama
• Decided: January 20, 1921
• Docket: 3 Div. 482.
• Status: Published

Opinions

McCLELLAN, J.

The decree appealed from canceled, in so far as Mrs. M. A. Gibbons (complainant-appellee) was concerned, a deed of date May 6, 1916, executed by Mrs. M. A. Gibbons, along with L. W. Gibbons and Mrs. L. W. Gibbons, to R. H. Gibbons, since deceased, conveying all the right, title, and interest of the grantors in 170 acres of land in Autauga county. The bill’s theory is that the execution of this instrument by Mrs. M. A. Gibbons was procured by fraudulent representations of its character and effect, or by undue influence exerted upon her, by the grantee who was her son and alleged to have occupied to her, at the time and prior tliere to, a relation of confidence in respect of the mother’s (complainant’s) affairs.

[1] The complainant (appellee) admitted executing and acknowledging the instrument. The respondents interposed objections to those phases of complainant’s testimony wherein she recited statements by the grantee, R. I-I. Gibbons (since deceased), directed to showing fraudulent representations by him as inducing her execution of the deed. These objections, written and filed before submission and listed in the note of testimony, should — under our statute governing the competency of witnesses, pecuniarily interested in the result of the suit, to testify to transactions with or statements by' a party since deceased, to whose estate the witness has an adverse interest (Code, §' 4007; 12 Mich. Ala. Dig. pp. 1171 et seq.) — have been sustained, and such testimony eliminated from consideration. Without the testimony of the complainant (appellee) relating to these alleged fraudulent misrepresentations by the grantee, the evidence remaining did not warrant a conclusion that the deed was procured by fraudulent misrepresentations by the grantee, R. H. Gibbons, as averred in the bill.

The decree of cancellation was, under the principles stated in Waddell v. Lanier, 62 Ala. 347, warranted, however, by the pleading and proof referable to the ground that, in so far as Mrs. M. A. Gibbons was concerned, the deed was the result of undue influence exerted by the grantee, her son, who occupied toward her and her affairs, at the time the instrument was executed, a relation of such peculiar confidence that the burden of proof passed to the respondents to bring forward evidence “proving satisfactorily that” the transaction was “just, fair, and equitable in every respect.” Waddell v. Lanier, 62 Ala. 347, 350, 351. This acquitting burden was not .discharged by the respondents. The complainant (appellee) was, at the time, aged and infirm. The grantee had for years looked after her, living near by on the farm which his father, up to 1905, and his mother (appellee), had occupied since 1890, the entire area of which is described in the deed in question. Such a complete divestiture of title or right by this aged woman — in favor of her son who occupied toward her and her affairs a relation of trust and confidence — of all she had or claimed, except a small amount of personal effects, is well calculated to subject the transaction to suspicion and to emphasize the application of the rule that, in these transactions, the innocence and fidelity of the grantee should be satisfactorily established, if the instrument is to be allowed to stand. Waddell v.. Lanier, supra, among many others in its line. The decree is affirmed.

Affirmed.

ANDERSON, O. J., and. SOMERVILLE and THOMAS, JJ., concur.