Grisham v. Edwards

86 So. 3d 987, 2011 WL 49846, 2011 Ala. Civ. App. LEXIS 4
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 7, 2011
Docket2090988
StatusPublished

This text of 86 So. 3d 987 (Grisham v. Edwards) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grisham v. Edwards, 86 So. 3d 987, 2011 WL 49846, 2011 Ala. Civ. App. LEXIS 4 (Ala. Ct. App. 2011).

Opinions

THOMAS, Judge.

Carol Jean Grisham, as the personal representative of the estate of Earnest Herbert Inman, deceased, appeals the trial court’s judgment entered against Inman’s estate and in favor of Rachel G. Edwards (“Ms. Edwards”); the trial court’s judgment declared void for improper execution a deed conveying a piece of real property (“the property”) from James Edwards (“Mr. Edwards”), Ms. Edwards’s husband, and Ms. Edwards (hereinafter collectively referred to as “the Edwardses”) to Inman.

Facts and Procedural History

The Edwardses purchased the property that is the subject of this action on September 15,1960. On January 10,1997, the Edwardses signed a warranty deed (“the 1997 deed”) conveying the property to In-man; Inman recorded the 1997 deed on January 21,1997, with the Colbert Probate Court (“the probate court”). Appearing at the foot of the 1997 deed are the signatures of two witnesses, Robert Thomas Wray II and Janice M. Kiser, attesting to the fact that the 1997 deed was “signed, sealed, and delivered” in their presence. Grisham, who is also a notary public, notarized the 1997 deed.

Grisham testified that she witnessed the Edwardses sign the 1997 deed. Grisham testified that she did not have the Ed-wardses swear under oath that they understood the 1997 deed or that they were executing the 1997 deed voluntarily. Gris-ham testified that she did, however, read the acknowledgment on the 1997 deed to the Edwardses before they signed it and that they understood the contents of the acknowledgment. The acknowledgment on the 1997 deed states:

“I, Carol Jean Grisham, a notary in ■and for [Colbert] County, [Alabama], hereby certify that James W. Edwards and wife, Rachel Gertrude Inman Edwards whose names signed to the foregoing conveyance, and who are known to me acknowledged, before me, on this day that being informed of the contents of this conveyance have executed the same voluntarily....”

The acknowledgment on the 1997 deed indicated that Grisham notarized the 1997 deed on January 15, 1997; however, Gris-ham testified that she had not filled in the date of the acknowledgment, which was typewritten into the acknowledgment, and that she thought January 10,1997, was the “correct” date. Ms. Edwards’s trial attorney, Robert Gonce, and Grisham had the following exchange during Gonce’s redirect examination of Grisham:

[989]*989“[Gonce]: The [1997] deed was signed by all of these people on January 10th, but you did not put an acknowledgment on there until January 15th?
“[Grisham]: I don’t know. I put [the] acknowledgment on it when it was signed, you can believe that.”

Grisham also testified that she had witnessed the two witnesses sign the 1997 deed. Grisham admitted that she could not remember if the Edwardses signed the 1997 deed inside or outside the house situated on the property.

Wray testified that he had not, in fact, witnessed Ms. Edwards execute the 1997 deed; Wray did not testify whether he had witnessed Mr. Edwards execute the 1997 deed. Wray testified that he had been approached by the Edwardses, Inman, and Grisham and that he had been requested to sign a document. Wray testified that he signed the document presented to him without knowing what it was. Wray further testified that Kiser was “out there” when “they” brought “it” to be signed. Wray testified that “it had already been signed at the time it was brought out there.”

On January 24, 1997, Inman took out an open mortgage on the property in the amount of $50,000. The mortgagee was Grisham. Grisham recorded her mortgage interest in the property.

Mr. Edwards died in November 2000.

On June 22, 2006, Inman signed a warranty deed conveying the property to Gris-ham; this deed was recorded with the probate court on March 24, 2009. Gris-ham testified that Inman conveyed the property to her “[a]s collateral for monies he had borrowed from me.” Grisham further testified that she did not recall exactly how much Inman owed her at the time he conveyed the property to her but that “at one time” he owed her $70,000 to $80,000. Grisham also testified that she had paid Inman approximately $80,000 in cash on the day that Inman conveyed the property to her.

On September 4, 2007, Ms. Edwards sued Inman, seeking to cancel the 1997 deed and to quiet title to the property. In her original complaint, Ms. Edwards argued that “the consideration for the [1997 deed] to [Inman] was an agreement by [Inman] to support [Ms. Edwards] during her lifetime and that [the 1997 deed] is void by virtue of provisions of Ala.Code 1975, § 8-9-12.”

On February 16, 2009, Ms. Edwards filed a motion for a summary judgment. The trial court granted Ms. Edwards’s summary-judgment motion on March 25, 2009.

On April 7, 2009, Grisham filed a motion to set aside the summary judgment entered in favor of Ms. Edwards. Grisham indicated that Inman had died on March 14, 2009, leaving a will appointing her the personal representative of his estate. Grisham requested that “[t]he estate should now be substituted as a party, with ... Grisham as the personal representative.” On June 28, 2009, the trial court granted Grisham’s motion to set aside the summary judgment. However, the trial court did not substitute Grisham as a party. Regardless, Grisham, in her capacity as the personal representative of Inman’s estate, has defended the action from that time forward.

On September 14, 2009, Grisham, as the personal representative of Inman’s estate, filed a motion for a summary judgment. Grisham argued that the 1997 deed could not be set aside pursuant to § 8-9-12 because Mr. Edwards never filed a petition to set aside the 1997 deed during his lifetime.

[990]*990On February 16, 2010, Grisham, as the personal representative of Inman’s estate, filed a motion to dismiss Ms. Edwards’s complaint, which the trial court denied.

On March 16, 2010, Ms. Edwards filed a motion to amend her complaint, alleging that the 1997 deed “is void because it failed to comply with Ala.Code [1975], § 35-4-20 and Ala.Code [1975], § 34-4-24 in that the deed was never properly witnessed or acknowledged.” The trial court granted Ms. Edwards’s motion to amend her complaint.

On July 1, 2010, following a nonjury trial, the trial court entered a judgement in favor of Ms. Edwards, stating in pertinent part that “[t]he [1997] [d]eed ... is hereby declared null and void and is set aside, based on improper execution of that [d]eed.” The trial court went on to hold that title to “the property ... is vested in [Ms.] Edwards.”

Grisham, as the personal representative of Inman’s estate, appealed to the Supreme Court of Alabama. Our supreme court transferred Grisham’s appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

This court set forth the well established standard by which we review judgments based on ore tenus evidence in Farmers Insurance Co. v. Price-Williams Associates, Inc., 873 So.2d 252 (Ala.Civ.App. 2003):

“ “When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes,

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Bluebook (online)
86 So. 3d 987, 2011 WL 49846, 2011 Ala. Civ. App. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grisham-v-edwards-alacivapp-2011.