Payne v. Powe

SAYRE, J. Appellants, daughters of Julius A. Powe, who died since the evidence in this case was taken, filed the bill in this cause to set aside two conveyances, executed by their father on November 13, 1914, and August 4, 1917, by which the apparent title to a farm of 433 acres passed into the appellee Frank H. Powe, a son of deceased. The charge is that these conveyances, each to one-half (approximately) of the farm, were procured by undue influence, and upon a former appeal (Powe v. Payne, 208 Ala. 527, 94 So. 587) it was ruled that appellants were entitled to file the bill in virtue of a' deed from their father, of date January 19, 1920, then —at the filing of the bill — still in life. The issue is mainly one of fact and the due application of the law of undue influence. The grantor in these conveyances, about which the parties are in disagreement, was, in the summer of 1910, in business at Talladega as the chief owner of a corporation. In that summer his corporation went into bankruptcy, and he suffered a severe stroke of apoplexy, which thereafter kept him abed for months — nearly a year, it seems — and disabled him for the regular pursuit of any sort of business for several years. In June, 1911, his wife, the mother of these parties, died, and in the late fall of that year appellee came over from Jefferson county, where he had practised his profession as a civil engineer, and with his father and Mary, his youngest sister, a moron, with the mind of a child of 6 years, went to the farm to live. Before that Julius A. Powe had made a will, leaving all his property to his wife, and it is highly probable that, anticipating the early death of Julius, his wife had an understanding with appellee that he should ultimately have the farm in consideration of his care of the family since his father’s failure in business and in the future. But of course the mother had no right to dispose of the father’s property without his competent consent. In August, following the death of his wife, Julius made a second will, leaving everything to appellee. This will is now of importance only as going to show a management of things with a view to vesting exclu *677 sive ownership of the farm ultimately in appellee, for, June 15, 1914, Julius, declaring that it did not represent his wishes, entered into a formal act of revocation at the same time and in the same instrument, declaring it to" be his desire and intention that all his property should descend to his four children equally. Appellee’s testimony is that the understanding between his father and himself was that he should take charge of the farm, give his father his board and rent at the rate of $600 per annum, work out his debts, and have what was left at his death. Appellee had, since Julius suffered his stroke, assumed full control and management of his affairs, and so continued to do until August 4, 1917, when his father executed the last of the conveyances in controversy. According to his own testimony he exercised complete control, down to the smallest items of the personal needs of his father and his moron sister, whose board he charged to his father. On appellee’s suggestion, in the circumstances amounting to dictation, the father executed mortgages and the two deeds in question. The relation between the two was per se confidential, and on the evidence, the effect of which has been stated in bare outline, it is impossible to avoid 'the conclusion that time — the father was then close to 70 years of age — and circumstances had reversed the order of nature, and that the usual dominance of the parent had been displaced by subservience to the child. The parent had no independent advice except upon the occasion when he revoked the will which he had made, for the exclusive benefit of appellee. In these circumstances the settled policy of the law devolves upon appellee the burden of showing that the two conveyances in question proceeded from the free and intelligent volition of his father, without imposition or coercion on the part of the beneficiary. Hawthorne v. Jenkins, 182 Ala. 255, 62 So. 505, Ann. Cas. 1915D, 707; Couch v. Couch, 148 Ala. 332, 42 So. 624, is much in point. We paraphrase language of the last-cited case as follows. If it be urged that appellee’s grantor manifested an understanding of his acts and approved the transactions into which he entered, yet it does not appear that there was a severance of the confidential relation by the interposition of competent, independent, and disinterested advice. As Lord Eldon said, in Huguenin v. Baseley, 14 Ves. 300, the question is, not whether the' grantor knew what he was doing, had done, or proposed to do, but how the intention was produced. Appellee undertakes to show that the transactions by which he acquired title to this farm were fair and reasonable — that these conveyances did no more than give him just compensation for money advanced by him to discharge liabilities incurred by his father before they went to the farm and for the support of his father and sister down to the date of the last conveyance, and, if this has been shown, it should avail much in support of the burden laid upon him by the law. The deed of November 13, 1914, purporting to convey 212% acres, recited a consideration of $5,820; that of August 4, 1917, purporting to convey the remainder of the farm, 217'acres, more or less, recited a consideration of $8,680. These recited considerations total $14,500, and the immediate inquiry is whether Julius A. Powe, the father, was indebted to appellee in that sum, and, if so, whether that sum fairly represents the value of the farm. In December, 1917, this land with its improvements was valued for a loan from the Federal Land Bank at $13,-000; but this, we feel sure, was a very conservative estimate of its value. The land with its improvements, on a very reasonable estimate, was worth, we shouljl say, $15,000. There is evidence going to show that both appellee and his father' on one occasion at least valued it at a much higher figure. Two witnesses speak of it as worth from $25 to $40 an acre. None place its value below $25, and opinions which do place the value so low appear to have reference to the land only, where as there were valuable improvements on the property. Tenants, to whom parts of the land were let, paid an average annual rental of 15 bales of cotton. On May 10, 1919, shortly before Julius A. Powe left the farm and went to live with his daughter Mrs. Payne, in Anniston, appellee had him to acknowledge and sign a statement of the account between them, covering all items of debit and credit down to that day. This account, down to 1917, charges the father with all the personal expenses of himself and his daughter Mary, including the board of the latter. It shows an indebtedness of $14,009.48 on January 1, 1917, and $15,237.96 on January 1, 1918. The items making the difference are for the most part undated. Julius A. Powe is credited annually with $600 as rent. This credit for the year 1917 lacked more than $500 of meeting interest charges which had been growing from year to year, and these interest charges in excess of $600 were made to bear interest. Of course appellee had the right to charge interest for moneys and articles of use advanced to his father, but he is not entitled to interest on interest. The cost of all improvements on the farm, aggregating approximately $1,500, is charged to Julius A. Powe, whereas appellee was a tenant, at best a merely prospective owner, and had no right to charge improvements against his landlord. Moreover, the money which paid for these improvements was raised in large part at least by mortgages on the farm. It seems clear that the cost of these improvements is not a proper charge against appel *678 lee’s grantor. For the year 1915 the proceeds of 6 bales of cotton, about $300, are charged to Julius A. Powe. The evidence shows that there had been a constant improvement in Julius A. Powe’s physical condition — and mental too — since 1910, and that in 1915 — because Julius wanted to do something — appellee let him have the part of the farm cultivated by a tenant, Mose Harris, to operate for himself. No reason occurs to us why the rent cotton collected by Julius should be charged against him as a liability. Mortgages aggregating $4,000 or more were placed on the property prior to the date of the latest of the two deeds in controversy. Appellee fails to shovfr just What went with the money thus realized. Some of it — no doubt most of it — went to discharge old debts due from Julius Powe, but there Is a distinct failure to account for all of it. We will not undertake to state the account between appellee and his grantor after the fashion of bookkeepers. That was incumbent on appellee. But upon the whole record we feel constrained to the conclusion that appellee has failed to sustain the burden put upon him by his relations with the grantor in his deeds, has failed, by several thousand dollars, to show that his grantor got full value for his farm. It results that the deeds of November 13, 1914, and August 4, 1917, and all agreements leading up to them, must be set aside and held for naught. A decree to that effect will be entered here. It is not considered that any other or further relief may be had on this bill. Reversed and rendered. ANDERSON, O. J., and GARDNER and MILLER, JJ., concur.