Opinion
SC 1163.
July 31, 1975. Rehearing Denied August 21, 1975.
Appeal from the Circuit Court, Bibb County, Virgis M. Ashworth, J.
J. Garrison Thompson, Selma, for appellants.
Where one party to a contract is deceased, the survivor is incompetent to testify as to the transaction which he had with the deceased party when the heirs of the latter are interested in the suit. Title 7, Sec. 433, 1940 Code of Alabama, (Recompiled 1958); McBee v. McBee, 265 Ala. 414, 91 So.2d 675; Federal Land Bank of New Orleans v. Curington, 233 Ala. 263, 171 So. 361; Banner v. White, 195 Ala. 588, 71 So. 114. Fraud is never presumed and when relied upon must be distinctly alleged and proven. Mangina v. Bush, 286 Ala. 90, 237 So.2d 479; Decker v. State Nat. Bank, 255 Ala. 373, 51 So.2d 538; Birmingham Trust Savings Co. v. Shelton, 231 Ala. 62, 163 So. 593. The burden of proving fraud is on him who asserts it. Mangina v. Bush, 286 Ala. 90, 237 So.2d 479; Morrison v. Federal Land Bank of New Orleans, 232 Ala. 128, 167 So. 288; Birmingham Trust Savings Co. v. Shelton, 231 Ala. 62, 163 So. 593. Fraud, when relied upon to defeat a deed, must be clearly, satisfactorily and convincingly proven. Hodges v. Beardsley, 269 Ala. 280, 112 So.2d 482; Cross v. Maxwell, 263 Ala. 509, 83 So.2d 211; Wooddy v. Matthews, 194 Ala. 390, 69 So. 607; Stewart v. Stewart, 171 Ala. 485, 54 So. 604. The execution of a deed without knowledge of its contents and without the intention to convey the lands therein described is insufficient grounds to invoke the jurisdiction of equity to set the deed aside. Federal Land Bank of New Orleans v. Curington, 233 Ala. 263, 171 So. 361. One who has the ability to read and understand an instrument but does not do so is bound thereby, in the absence of fraud or misrepresentation, even though the signer may not know of its contents. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 261 So.2d 865; Eley v. Brunner-Lay Southern Corporation, Inc., 289 Ala. 255, 266 So.2d 276; Grady v. Williams, 260 Ala. 285, 70 So.2d 267. One who signs and acknowledges a deed without reading it cannot void it because not informed of its contents unless induced by fraud to sign it, ignorance of the contents being attributable to negligence. Wooddy v. Matthews, 194 Ala. 390, 69 So. 607; Dawson v. Burrus Williams, 73 Ala. 111. Facts stated in a certificate of acknowledgment to a deed are presumptively correct and evidence to impeach the same must be clear and convincing. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865; Henslee v. Henslee, 263 Ala. 287, 82 So.2d 222; Ford v. Fauche, 272 Ala. 348, 131 So.2d 852. A deed is not subject to cancellation for lack of consideration or inadequacy of consideration, and where a valuable consideration is recited in a deed, a grantor in the absence of fraud, mistake or duress is estopped to deny the recitation. Hodges v. Billingsley, 269 Ala. 280, 112 So.2d 482. Porter v. Roberson, 263 Ala. 294, 82 So.2d 244.
James M. White, Centreville, for appellee.
A "deed" is but an executed contract of sale. Blackmon v. Quennelle, 198 Ala. 630, 66 So. 608. If the grantee or lessee by misrepresentations of what the grant or lease contains obtains the grantor's signature to the grant or lease, which he did not intend to sign, and did not know he was signing, this is a fraud that is available in a court of law. Prestwood v. Carlton, 162 Ala. 357, 50 So. 255. Where the execution of a deed is obtained by misrepresentation as to its contents, and the grantor is induced by such fraud to sign a conveyance of property she did not know was included in the instrument, she can avoid the effect of her signature because of the fraud practiced on her, notwithstanding she may have neglected to read the instrument or have the instrument read to her. Leonard v. Roebuck, 152 Ala. 312, 44 So. 390. A witness on direct examination may testify as to his intention, motive or other physically unexpressed mental state, provided that the testimony is material to the issue in the case; language to the contrary in Lowe v. Lowe, 255 Ala. 536, 52 So.2d 218, and other cases is expressly overruled. Starr v. Starr, 293 Ala. 204, 301 So.2d 78. The chancellor's finding upon facts will not be reversed merely because the appellate court can not see that the decree is right; it must be satisfied that it is wrong. The presumption in favor of the judgment of the court below prevails as well to its findings upon the facts as to its rulings upon the law. Marlowe v. Beneagh, 52 Ala. 112. Where evidence is ore tenus, or partly so, in case tried without a jury the trial court having had the advantage of hearing and observing the witnesses testify, great presumption is indulged in favor of the correctness of the conclusions of the trial court. London Assurance v. Hendon, 30 Ala. App. 175, 2 So.2d 917, certiorari denied, 241 Ala. 390, 2 So.2d 921; Hackett v. Cash, 196 Ala. 403, 72 So. 52; Johnstone v. O'Rear, 220 Ala. 219, 124 So. 743.
Appellee brought suit against Suzanne D. Ingram and Kay D. Foster, individually, and in their administrative capacity, seeking to have a deed declared null and void. The Circuit Court of Bibb County, sitting without a jury, rendered a final judgment which set aside the deed in question and vested title in appellee. Appeal was then perfected to this Court by the administratrix and heirs of the deceased grantee.
On October 21, 1971, appellee executed a deed conveying to her brother, Harold Dailey, the fee simple title in and to a 260-acre tract of land, reserving in herself a life estate.
In her complaint appellee avers that she signed the deed under the mistaken belief that it conveyed title to a city lot in Centreville, Alabama. This belief, she avers, arose out of her reliance on the fraud and misrepresentations of her brother, Harold Dailey, the grantee and Sheriff of Bibb County, who, she avers, brought the deed to her home, informed her that it conveyed title to her lot in Centreville, and assured her that she need not read the deed since she already knew its contents. In reliance on her brother's alleged misrepresentations, appellee avers that she signed the deed without reading it, without knowledge of its actual contents, and without the intention of conveying title to the 260-acre tract. It is alleged that appellee did not learn of the actual contents of this deed until after the death of her brother. Shortly thereafter, on May 30, 1974, appellee brought suit against his administratrix, who also are his heirs, praying for a cancellation of the deed.
At trial, three theories were advanced upon which appellee asserted her right to the requested relief: (1) that there was a total failure of consideration for the execution of the deed; (2) that she signed the deed without knowledge of its contents and without the intention of conveying the land described therein; and (3) that the execution of the deed was procured through the fraud and misrepresentations of Harold Dailey.
The trial judge rendered judgment for appellee. He found, inter alia, that a deed is invalid without a "meeting of the minds," that the deed was not read by, or to, appellee, that she did not know she was conveying the land, and that she did not intend to convey the property described therein. On this appeal, appellants challenge not only the court's conclusions of law but also the sufficiency of the evidence to support the decree.
As to the first of appellee's theories, we agree with appellants that a deed may represent a gratuitous conveyance of realty, and that even a "total failure of consideration" such as that alleged by appellee is insufficient grounds for the cancellation of an otherwise valid deed. As this Court has pointed out, "A deed is valid and operative as between the parties and their privies, whether founded on a consideration or not." Porter v. Roberson, 263 Ala. 294, 296, 82 So.2d 244, 245 (1955).
As the second of the theories upon which appellee sought the cancellation of the deed, it is alleged that appellee executed the instrument without knowledge of its contents and without the intention to convey.
When a grantor fails to read a deed (having the ability to read and understand it) and this results in his execution of an instrument which conveys realty, although he subsequently avers he did not intend to convey, the grantor's mistake will be attributed to his own negligence and the deed will be upheld so long as his signature was not induced by fraud or misrepresentation. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865 (1972).
Accordingly, if the deed in this case is to be set aside because of appellee's lack of intention to convey the property described therein, appellee must prove that she acted under the influence of fraud or misrepresentation. This Court has held that "The degree of proof required to rescind or cancel a conveyance because of fraudulent misrepresentation is more than a mere probability of the truth of the charge of fraud." Hodges v. Beardsley, 269 Ala. 280, 282, 112 So.2d 482, 483-84 (1959).
In cases where the grantor seeks to set aside a deed on the ground that a fraudulent misrepresentation induced him to sign the deed without knowledge of its contents, this Court has required that the fraud must be clearly and satisfactorily proven. Cross v. Maxwell, 263 Ala. 509, 83 So.2d 211 (1955); Hodges v. Beardsley, supra.
"If the proof is uncertain in any material respect, it will be held insufficient, though the court may feel that a great wrong has been done; the court cannot grant the relief by reason of uncertainty." Wooddy v. Matthews, 194 Ala. 390, 69 So. 607 (1915).
After carefully reviewing the record below, we find that the appellee has not met this burden of proof on the issue of fraud. Appellee was the sole witness to the alleged misrepresentations made by the deceased grantee. Whether testimony regarding alleged fraudulent statements made by the deceased grantee may be rendered incompetent by operation of the Dead Man's Statute (Title 7, section 433, Alabama Code (Recomp. 1958), we need not decide because no evidence was offered to substantiate the charges of alleged fraud and misrepresentations. Thus, appellee's alleged lack of intent to convey is an insufficient basis for the cancellation of the deed.
The third theory advanced by appellee upon which the cancellation of the deed is sought is that the execution of the deed was procured through the fraud and misrepresentations of the deceased grantee. Here again, we reiterate that appellee's right to relief is contingent upon clear and convincing proof of the alleged fraud and misrepresentation, authorities supra. Moreover, this Court is committed to the proposition that an acknowledgment to a deed is entitled to great weight and can be impeached only when the evidence is clear and convincing. Porter v. Roberson, supra. The record of trial in the instant case does not contain any evidence of such fraud or misrepresentation, nor did the trial court make any finding of fact with respect thereto.
The undisputed evidence is that Sheriff Dailey came to appellee's home with his secretary, a notary public, who took appellees' acknowledgment to the deed. The instrument was not read to appellee. The secretary testified she did not read the deed nor was she told what it was until they were returning to the office when Sheriff Dailey told her it was a deed to appellee's place. Over appellant's objection, appellee was allowed to testify that she did not know what the deed was when she signed it and that she did not intend to convey the 260-acre tract to the deceased. There was no evidence that any false representation was made by Sheriff Dailey at the time of the deed's execution.
In the absence of proof entitling appellee to the relief sought, we must reverse and remand the judgment of the circuit court.
Reversed and remanded.
HEFLIN, C. J., and FAULKNER, ALMON and EMBRY, JJ., concur.