Opinion
No. 38467.
October 6, 1952.
1. Appeal — deeds — undue influence — fiduciary relationship — finding of facts by chancellor.
When the litigated issues are whether a fiduciary relationship existed between the parties to a deed and whether the instrument was procured as a result of undue influence, the findings of fact by the chancellor, sustained by the evidence, will not be disturbed on appeal.
Headnote as approved by Lee, J.
APPEAL from the chancery court of Lowndes County; A.F. McKEIGNEY, Chancellor.
H.T. Carter and Guyton Anderson, for appellants.
The law, as announced in the Ham case, 146 Miss. 161, 110 So. 583, is wise and firmly established. It has successfully withstood all attacks since it was decided in 1926. The confidential and fiduciary relationship was not greater, and was quite similar to, the same relationship in the case at bar. Eugene Ham claimed also that the deed to him was one of bargain and sale, but the consideration actually paid was so small compared with the value of the property conveyed that the Court says it was grossly inadequate. The social relationship in the case at bar is stronger than it was in the Ham case; and the conventional fiduciary relationship of master and servant, principal and agent, is about as strong as was the partnership relationship in the Ham case. In the Ham case there was no showing that Eugene Ham brought any pressure on his brother to obtain the deed; and in the case at bar there is no direct proof of pressure by appellees. The attorney who wrote the deed in the Ham case was the attorney for both brothers, and they together consulted this attorney. In the case at bar the attorney who drew the deed had been the attorney for Mrs. Burns, but he wrote the deed solely on information furnished by one of the grantees, and had no communication with Mrs. Burns.
The case at bar is on all fours with the Ham case. As was done in the Ham case, the presumption of fraud arising from the confidential fiduciary relationship between the grantor and the grantees is relied on. The proof made in the Ham case to overcome this presumption was equally as strong, if not stronger, than in the case at bar; but the presumption was not overcome. C.M. Ham had made a will, which was actually probated, which conflicted sharply with the deed there in question. In the case at bar Mrs. Burns said she had made a will, and possibly she thought she had done so; but she in fact had not, and no will was probated. The deed she made to appellees conflicts with the right of inheritance.
Robin Weaver and T.J. Tubb, for appellees.
An analysis of the case of Ham v. Ham, 146 Miss. 161, 110 So. 583, cited by appellant as the law in this State on this proposition is in order.
In the Ham case, the grantor and grantee were (1) brothers, (2) partners in business (3) relation very close and intimate between them (4) and the grantee exercised considerable influence over the grantor in matters of carrying out the doctor's instructions during his fatal illness and before execution of the deed (5) the operation of partnership business devolved more and more upon the grantee until grantee was almost wholly operating the business when the deed was executed.
In the case at bar, there was no partnership relation, while there was love and affection between Mrs. Burns and appellees, there was not that dependency by Mrs. Burns upon appellees as in the Ham case. The relationship was close, but not that of brother and sister. There was no intimacy between Mrs. Burns and appellees on matters of business. The proof here affirmatively shows that no influence was here exercised by appellees over or on Mrs. Burns, but to the contrary, Mrs. Burns was the influence wielder over appellees. Here, Mrs. Burns trusted none of the discretion or judgment over her business affairs to either of appellees.
In the Ham case, the attorney was attorney for both grantor and grantee, and had been for years. Here, Mrs. Burns' attorney was used at her direction and to the exclusion of the attorney of appellee Anderson.
In the Ham case, it was known to the grantee that grantor could live only a short time. Here, there was no indication that death was near, in fact, the grantor lived over two years after the deed was executed.
In the Ham case, the grantor executed the deed in the presence of grantee, while on a sick bed, just a few days before death. Here, Mrs. Burns executed the deed before the Notary Public alone, after having the deed read and explained to her, the Notary being her friend for forty-five years and having her interest first at heart.
In the Ham case, the grantor surrendered possession and control of the property conveyed. Here, Mrs. Burns retained a life estate.
In the Ham case, the deed was kept quiet and was not recorded until after the grantor's death. Here, the deed was immediately recorded after execution.
In the Ham case, only the witness, grantee and nurse knew about the deed until after death. Here, all Mrs. Burns' friends who testified, either knew she wanted and intended to convey her home before she did convey it or knew that she had conveyed it after executing the deed, because Mrs. Burns told them.
In the Ham case, there were suggestions by grantee in the joint conference with the attorney and at the time of execution of the deed. Here, there were never any suggestions from appellees to Mrs. Burns as to what she should do with her home.
See the later case of Bourn v. Bourn, 163 Miss. 343, 140 So. 518.
This is the second appearance of this cause here. Hickey v. Anderson, 49 So.2d 713. In the first trial, the issues were whether or not a fiduciary relationship existed between the decedent Mrs. Rosa Ann Burns, and the appellees, and whether or not the appellees exercised undue influence over Mrs. Burns in the execution of a deed to them. In that trial, the complainant used several witnesses in support of the allegations of the bill; and, at the close of his evidence, the appellees, without introducing any evidence whatever, made a motion to exclude, which motion was sustained, and the bill was dismissed.
On appeal here, it was held that, on such a motion, the court must accept as true all of the believable evidence, together with the reasonable inferences to be deduced therefrom; and that under such rule, a prima facie case had been made out, which required appellees to put on their proof so that the issues could be decided in the light of all the evidence. The decree was therefore reversed and the cause remanded for a new trial.
On the second trial, the complainant introduced substantially the same evidence. In addition, other witnesses who had offered to testify as to the mental condition of Mrs. Burns, but whose testimony was excluded, were permitted to testify. He also developed as far as possible the facts in connection with the decedent's bank account before and after she began to live with the defendants.
At the conclusion of the complainant's case, the defendants put on a large number of witnesses, including the notary public before whom Mrs. Burns acknowledged her signature to the deed and the doctor who had been her physician for many years. These witnesses testified that Mrs. Burns was in her right mind and was fully capable of understanding her acts prior to, at the time of, and subsequent to, the execution of the deed in question. This evidence was further to the effect that she was a woman of strong will; that she neither sought nor obtained advice from the defendants or anyone else; that the defendants exercised no undue influence over her; and that there was no fiduciary relationship existing between the defendants and Mrs. Burns.
The learned chancellor, at the close of the case, resolved the issues against the complainant and dismissed his bill. From the decree entered he appeals.
(Hn 1) Since the evidence fully sustains the conclusion reached by the trial court, his findings will not be disturbed here. Muse, et al. v. Alexander, et al., 56 So.2d 804; Cowart v. Cowart, 51 So.2d 775.
Affirmed.
Roberds, P.J., Hall, Holmes and Arrington, JJ., concur.