Opinion
No. 31702.
June 10, 1935.
1. EQUITY.
Defendant must swear to his answer on knowledge, and not merely on information and belief, to obtain benefit of rule requiring two witnesses or one witness and corroborating circumstances to overthrow denial in answer.
2. EQUITY.
Statute abolishing rule requiring two witnesses or one witness and corroborating circumstances to overthrow denial in answer where bill is "sworn to" requires positive oath by complainant on knowledge and not on mere information and belief (Code 1930, sec. 383).
3. EQUITY.
Affidavit of complainant stating that allegations of bill were true "to the best of her knowledge, information and belief" held insufficient to come within statute abolishing requirement of two witnesses or one witness and corroborating circumstances to overthrow denial in answer, where bill is "sworn to" (Code 1930, sec. 383).
4. EQUITY.
That defendants were incompetent witnesses in their own behalf under statute relative to testimony in support of claims against estates of deceased persons did not alter effect of their sworn answer responsive to bill (Code 1930, sec. 1529).
5. WITNESSES.
Complainants, by compelling defendants to testify, waived defendants' statutory incompetency as witnesses.
6. DEEDS.
In suit to cancel deeds, prima facie case of fraud is made by proof of existence of confidential relation between grantor and grantee.
7. EQUITY.
In suit to cancel deeds, burden of overcoming presumption of fraud arising from confidential relation between grantor and grantee was met by defendants' oath to answer denying undue influence, and complainants, who required oath to answer and did not swear to truth of bill on knowledge, had burden to overcome denial by two witnesses or one witness and corroborating circumstances (Code 1930, sec. 383).
APPEAL from the chancery court of Marshall county.
HON. N.R. SLEDGE, Chancellor.
Suit by Miss Lucy T. Fant and others against Lester G. Fant, Sr., and another. Decree for defendants, and complainants appeal. Affirmed.
Sylvanus W. Polk, of Memphis, Tennessee, for appellants.
The term, fiduciary relation, is a broad one and is not limited to the conventional fiduciary relations of attorney and client, guardian and ward, principal and agent, but extends to every intimate and confidential relation, and may be only moral, social, domestic, or merely personal.
Bourn v. Bourn, 140 So. 518, 163 Miss. 71; Ham v. Ham, 146 Miss. 141 110 So. 583; Meek Thornton v. Perry, 36 Miss. 190; Hitt v. Terry, 92 Miss. 710, 46 So. 829; Norfleet v. Beall, 82 Miss. 538, 34 So. 382.
A deed from a grantor to a grantee between whom there is a fiduciary relation, is presumed to be invalid, fraudulent, and void; and the burden of overcoming the presumption is on the person claiming under the deed.
Watkins v. Martin, 167 Miss. 343, 147 So. 652; Bourn v. Bourn, 163 Miss. 71, 140 So. 518; Ham v. Ham, 146 Miss. 141, 110 So. 583; Hitt v. Terry, 92 Miss. 710, 46 So. 829; Norfleet v. Beall, 82 Miss. 538, 34 So. 328; Meek Thornton v. Perry, 36 Miss. 190; Plant v. Plant, 76 Miss. 560.
Absolute fairness, good faith, full knowledge, and independent consent and action must be clearly proven, and the only way independent consent and action can be clearly proven is by showing that the grantor acted on the advice of a competent person disconnected from the grantee and devoted wholly to the grantor's interest.
Ham v. Ham, 146 Miss. 141, 110 So. 583; Watkins v. Martin, 167 Miss. 343, 147 So. 652; Bourn v. Bourn, 163 Miss. 71, 140 So. 518.
Where an aged, and feeble person, even though not totally disqualified, makes a conveyance to a person who is her mental superior for a grossly inadequate consideration, or none at all, fraud is inferred, and the heirs of the grantor are entitled to have the instrument cancelled, unless the presumption is overcome by clear evidence of good faith, full knowledge, and independent consent and action.
Caulk v. Burt, 114 Miss. 487, 75 So. 369; Leech v. Hirshman, 90 Miss. 723, 44 So. 33; Clark v. Lopez, 75 Miss. 932, 23 So. 648.
A deed drawn and obtained by a parent who stands in a fiduciary relation to the grantor, to his son, law partner and business associate, is as presumably fraudulent as if made to the parent.
Beeson v. Smith, 149 N.C. 142, 63 S.E. 888; Rankin v. Rankin, 134 S.W. 392.
The relation of attorney and client is not dependent upon the payment of a fee, and exists where the services of a lawyer are used and accepted, even though there is no definite agreement between the parties, or even though the services are rendered gratuitously.
Jones Bayou Drainage District v. Sillers, 129 Miss. 13, 91 So. 693; Packard v. Delfel, 9 Wn. 562, 38 P. 208.
It is proper to permit a non-expert witness to give in testimony an opinion as to soundness of mind only if said opinion is based on the facts testified to by the witness.
Shehan v. Kerney, 80 Miss. 688, 21 So. 41; Woods v. State, 58 Miss. 741.
A deed of gift prepared and obtained by a parent, who stands in a confidential relation to an aged and feeble minded woman, conveying a large portion of her property to his son, law partner and business associate is presumed to be as fraudulent as if the deed had been made direct to the parent, although the son had no knowledge of it until after the deed was executed, and there was no direct confidential relation between the donor and the son.
Meek Thornton v. Perry, 36 Miss. 190; Huguenin v. Beasley, 14 Ves. 275, 33 Eng. Rpts. 526; Addis v. Grange, 358 Ill. 127, 192 N.E. 774; Schrader v. Schrader, 298 Ill. 469, 131 N.E. 602; Dowie v. Driscoll, 203 Ill. 480, 68 N.E. 56; Spiva v. Boyd, 206 Ala. 536, 90 So. 289; Douglas v. Spear, 97 N.J. Eq. 25, 129 A. 128; Beeson v. Smith, 149 N.C. 142, 62 S.E. 888; Black v. Baylees, 86 N.C. 527; Harris v. Delamar, 38 N.C. 219; Stege v. Stege, Trustee, 237 Ky. 197, 35 S.W.2d 324; Graziano v. Lanuto, 97 N.J. Eq. 182, 127 A. 109; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Simonton v. Bacon, 49 Miss. 582; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Boswell v. Boswell, 20 Ky. Law Rep. 118, 45 S.W. 454; Thweatt v. Freeman, 73 Ark. 575, 84 S.W. 720; Young v. Murphy, 120 Wis. 49, 97 N.W. 496; Teegarden v. Restine, 57 Ind. App. 158, 106 N.E. 641; Simmons v. Jennings, 60 Miss. 886.
Smith Smith, of Holly Springs, for appellees.
The term "fiduciary" is well defined in the cases quoted by counsel, but only one of them is involved in this litigation, because only one of them is the predicate of the complaint of the appellants, the conventional one of attorney and client. The issues on appeal cannot be different from those tried in the lower court.
Vicksburg Mfg., etc., Co. v. Jaffray Const. Co., 94 Miss. 282, 49 So. 116; Ferguson v. Appelwhite, 10 S. M. 301.
The burden of proof is upon one who claims the invalidity of a deed, because of confidential relations, to establish such relations.
18 C.J. 424, sec. 503; Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41.
Our court has laid down the rule that the decree of a chancery court upon controverted facts is analagous to a verdict, and will not be disturbed unless shown to be opposed to the preponderance of the testimony.
Apple v. Ganong, 47 Miss. 189; Coffee v. Coffee, 24 So. 962; Kansas City, etc., R. Co. v. Doggett, 67 Miss. 250, 7 So. 278.
Where all the facts and circumstances of a situation or event are fully and completely developed by the evidence, the statutory or other presumption cannot be relied upon.
St. Louis San Francisco Ry. Co. v. Nichols, 161 Miss. 795, 138 So. 364; Batiste v. State, 147 So. 318, 165 Miss. 161.
A client is one who applies to a lawyer or counselor for advice and direction in a question of law or commits his cause to his management in prosecuting a claim or defending against a suit in a court of justice. Not one of these elements appears in the record in this case.
McCreary, Executor v. Hoops, 25 Miss. 428; Hudson v. Kimbrough, 74 Miss. 341, 20 So. 885.
If the position of appellants as to this relationship is sustained, the members of the legal fraternity will be segregated into a class denied the ordinary impulses of kindness and voluntary favors to their kin-people, merely because they are lawyers.
Stoute v. Smith, 98 N.Y. 25, 50 Am. Rep. 632.
The acts of the two notaries in taking the acknowledgments of Miss Fant were judicial or quasi judicial and their acknowledgments were judicial or quasi judicial acts.
Wasson, Admr. v. Conner, Trustee, 54 Miss. 351; Cotten v. McKinzie, 57 Miss. 418; Tyson v. Utterback, 122 So. 499.
Counsel states that section 1536 of the Mississippi 1930 Code provides that the communications made to a physician or surgeon are privileged but does not provide that the knowledge of a layman, regardless of how it may be obtained, is privileged. The statute provides who may waive it and it does not provide that a witness may waive it, nor does it provide that violation of the hearsay rule may be permitted by the court to waive it. It cannot even be waived by the heirs, executors, or administrators of the decedent.
McCaw v. Turner, 126 Miss. 260, 88 So. 705; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555.
Miss Fant had a right, being of sound mind, to execute these deeds without any consideration.
Longmyer v. Myer, 86 So. 753, 124 Miss. 77.
And she could do so from any motive, whether it be love, gratitude, partiality, prejudice, whim, or caprice.
Burnett v. Smith, 47 So. 117, 93 Miss. 566.
The answers of the appellees are of material benefit to the court in this case, having been sworn to because the appellants did not waive the oath and they are, therefore, admissible as evidence.
Griffith's Mississippi Chancery Practice, sec. 364; Sections 381 and 383, Code of 1930; McGehee v. White, 31 Miss. 41; Davis v. Hart, 66 Miss. 642, 6 So. 318.
The original bill of complaint did not waive answer under oath, which thereby made the answers of the two defendants evidence on behalf of complainants, in this lawsuit, admissible as testimony.
The burden of proof as to the establishment of the fiduciary relationship is the same burden of proof as in any other kind of litigated issue, and is subject to the rule also that where conflicting evidence is heard by the Chancellor and he passes his decree thereon, the Supreme Court will not disturb it unless manifestly wrong.
The Supreme Court of Iowa, in McDonald v. Hardin, 55 Iowa, 620, 8 N.W. 473, holds to the effect that deed to grantee procured by third party by fraud, where grantee was ignorant and innocent of such fraud himself, would not be set aside.
An action to rescind a deed will not be sustained merely because of fraudulent representations by a third person who did not act under the authority of defendants, and in which they neither participated nor had notice. If, however, the grantee is a party to the fraud, the deed may be set aside.
18 C.J. 232, sec. 153; Campbell v. Murray, 62 Ga. 86.
In the case of Stoute v. Smith, 98 N.Y. 25; 50 Am. Rpts. 632, the court refused to permit that transaction to be invalidated because the attorney drew the deed for himself.
Gregory v. Gregory, 323 Ill. 380, 154 New Eng. 149; Soberaines v. Soberaines, 31 P. 910; Ralston v. Turpin, 32 L.Ed. 747.
The fact that Lester Glenn Fant, Sr., wrote or procured the writing of the deed to Lester Glenn Fant, Jr., should not make any presumption that might arise against Lester Glenn Fant, Sr., attach also to the deed to Lester Glenn Fant, Jr.
Presumption are raised to supply the place of actual proof; when the proofs are present there is neither foundation nor room for the presumption.
Keller v. Over, 136 Pa. State 1, 20 A. 25; Grier v. Pa. Coal Co., 128 Pa. State 791, 18 A. 480; Lizhorn v. Lyman, 49 N.H. 553, 563; State v. Jones, 64 Iowa, 345, 17 N.W. 911, 20 N.W. 470; Wooten v. State, 24 Fla. 335, 5 So. 39, 1 L.R.A. 819; Diefenthler v. Hall, 96 Ill. App. 639; Largen v. State, 76 Tex. 323, 13 S.W. 161; Conway v. Supreme Counsel Catholic Knights of America, 137 Cal. 384, 70 P. 223; Erhart v. Dietrich, 118 Mo. 418, 24 S.W. 188; Galpin v. Page, 85 U.S. 305, 365; Jones v. Bond, 40 Fed. 281; Cunningham v. State, 56 Miss. 269, 31 Am. Rpts. 360; St. Louis San Francisco R.R. Co. v. Nichols, 161 Miss. 795, 138 So. 364; Baptiste v. State, 165 Miss. 161, 147 So. 318; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Gordon v. Gordon, 283 Ill. 192, 119 N.E. 312; Brannock v. Jaynes, 197 Mo. App. 150, 193 S.W. 51; Matter of Mathews, 143 Appellate Div. 561, 128 N.Y.S. 537; Frank v. Wright, 140 Tenn. 535, 205 S.W. 434; Ryan v. Union Pacific R. Co., 46 Utah, 530, 151 P. 71; U.S. v. Ross, 92 U.S. 281, 23 L.Ed. 707; Union Pacific R.R. Co. v. Bullis, 6 Col. App. 64, 39 P. 897; New London Board of Water Commissioners v. Robbins, 82 Conn. 623, 74 A. 938; Ray v. Swayne, 96 S.E. 209; Modern Woodman of America v. Kinchiloe, 93 N.E. 452; Glassman v. Harry, 182 Mo. 304, 170 S.W. 403; Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78; Douglas v. Mitchell, 35 Pa. 330; Peters v. Lohr, 35 S.D. 372, 152 N.W. 504.
Lawrence on Equity Jurisprudence, section 949, volume 2, points out that cancellation of an instrument is an extraordinary remedy and should not be granted unless the facts are proven by clear and convincing evidence.
Gillis v. Smith, 75 So. 451, 114 Miss. 665; In re Estate of Llewellyn, 296 Penn. 74, 145 A. 810, 66 A.L.R. 222.
A deed notwithstanding fiduciary relationship may be valid, if executed with full knowledge of its effect and through grantor's deliberate and voluntary desire.
Hazlinger v. Gabel, 176 N.E. 340, 344 Ill. 54; Pillsbury v. Brums, 301 Lee 578, 134 N.E. 103; Neagle v. McMullin, 334 Ill. 168, 165 N.E. 605; Negley v. Engleman, 335 Ill. 52, 166 N.E. 477; Gregory v. Gregory, 323 Ill. 380, 154 N.E. 149; Bailey v. Security Trust Co., 177 P. 444, 179 Cal. 540, 177 P. 449, 179 Cal. 815; Davis v. Stille, 11 S.W. 810; Roman v. Mali, 42 Md. 513; Ralston v. Turpin, 32 L.Ed. 747; Soberaines v. Soberaines, 31 P. 910; Hugenin v. Beasley, 14 Ves. 275, 33 Eng. Rpts. 526; Hunter v. Atkins, 3 Myl. K. 113, 135, 10 Eng. Chancery 113, 40 Reprint 43; Housewright v. Steinke, 158 N.E. 138, 326 Ill. 398.
Lester G. Fant, Sr. and Jr., of Holly Springs, for appellees.
The bill required answers under oath and answers under oath were duly filed. The answers, therefore, are evidence.
The chancellor found as a fact that Miss Fant's mind was sound, finding the fact under the request of complainants. Under the rule settled by more than one hundred cases, by actual count, that finding cannot be disturbed.
Bradbury v. McLendon, 119 Miss. 210, 80 So. 633; Jackson v. Mims, 123 Miss. 78, 85 So. 124; Fidelity v. Cross, 131 Miss. 632, 95 So. 631; Bacot v. Holloway, 140 Miss. 120, 104 So. 696; Apple v. Ganon, 47 Miss. 189; Howell v. Shannon, 80 Miss. 598, 31 So. 965; Jackson v. Banks, 144 Miss. 392, 109 So. 905.
There was no evidence remotely tending to show any influence, undue or otherwise. No syllable of the record breathes any intimation of any influence whatever. The appellants cite none, and none can be found.
Sworn answers were required and filed. It is not disputed that they are evidence in the case.
Section 381, Code of 1930; Davis v. Hart, 66 Miss. 642, 6 So. 310; Creegan v. Hyman, 93 Miss. 481, 46 So. 952; Griffith Chancery Practice, sec. 364.
The chancellor found as a fact that there was no undue influence, in findings of fact requested by complainants. With the proof as indicated above, that finding of fact cannot be questioned.
Pate v. Weathers, 167 Miss. 228, 240, 146 So. 433; Ellis v. Peregrini, 163 Miss. 385, 141 So. 273; Apple v. Ganong, 47 Miss. 189.
There was no fiduciary relation.
Executor v. Hoops, 25 Miss. 428; Stoute v. Smith, 98 N.Y. 25, 50 Am. Rep. 632.
The strongest contention that the appellants can make is that there was a conflict in the evidence. The Supreme Court will not disturb a chancellor's finding of fact merely because it may be doubtful whether it is right.
Dillard v. Wright, 11 S. M. 455; Davis v. Richardson, 45 Miss. 499; Randel v. Yates, 48 Miss. 685; Valentine v. McGrath, 52 Miss. 112; Vaughan v. Bank, 18 So. 270; Meek v. County, 133 Miss. 386, 97 So. 674; Bacot v. Holloway, 140 Miss. 120, 104 So. 696; Jackson v. Banks, 144 Miss. 392, 109 So. 905; Watkins v. Watkins, 142 Miss. 210, 106 So. 753; Kemp v. Turman, 104 Miss. 501, 61 So. 548; Aaron v. Citizens Ins. Co., 144 Miss. 480, 110 So. 120.
The appellants failed to meet the burden of proof required by law. This being true, the refusal of the chancellor to reform the written instrument will not be disturbed upon appeal.
Watson v. Owen, 142 Miss. 676, 107 So. 865.
Appellants are confined to the case presented by the bill, they cannot depart from that and attempt to proceed upon a different theory in the Supreme Court.
Vicksburg Mfg. Co. v. Jaffray Const. Co., 94 Miss. 282, 49 So. 116; Ferguson v. Applewhite, 10 S. M. 301; Cresswell v. Cresswell, 164 Miss. 871, 885, 140 So. 521; Bank v. Ins. Co., 104 U.S. 54, 68, 26 L.Ed. 693.
There are no presumptions in the case.
The mere drawing of a deed creates no presumption.
Wherry v. Latimer, 103 Miss. 524, 60 So. 563; Burnett v. Smith, 93 Miss. 566, 47 So. 117; 22 C.J. 83, par. 26-B; Blochowitz v. Blochowitz, 122 Neb. 385, 240 N.W. 586, 82 A.L.R. 949; Ralston v. Turpin, 129 U.S. 663, 32 L.Ed. 747; Soberanes v. Soberanes, 97 Cal. 140, 31 P. 910; Gregory v. Gregory, 323 Ill. 380, 154 N.E. 149; Williamson v. Williamson, 306 Ill. 533, 138 N.E. 166; Macall v. Macall, 135 U.S. 167, 34 L.Ed. 84; Meek Thornton v. Perry, 36 Miss. 190.
Not a single case cited by the appellant is in any way analogous to the facts in the question proposed by the court. It will be further seen that not a single case cited by appellants involved any presumption whatever.
Presumptions cannot stand in the face of answers sworn on the positive knowledge.
Sections 381 and 383, Code of 1930; Jacks v. Bridewell, 51 Miss. 881; Waller v. Shannon, 53 Miss. 500; Saffold v. Horne, 71 Miss. 762; Kyle v. Rhodes, 71 Miss. 487; Fulton v. Woodman, 54 Miss. 158; Johnson v. Crippen, 62 Miss. 597.
It is well established and unquestioned that an answer sworn to on information and belief is not a sworn answer. Under the statute it has likewise been expressly held that a bill sworn to on information and belief is not a sworn bill within the meaning of that statute.
Toulme v. Clarke, 64 Miss. 471; Snell v. Fewell, 64 Miss. 655; Shackelford v. Brown, 72 Miss. 380; Clarke v. Van Rheimsdeck, 9 Cranch 153, 3 L.Ed. 688; Griffith's Chancery Practice, page 628; Carrick v. Prater, 10 Humph, 270; Spurlock v. Fulks, 1 Swan, 289; Trabue v. Turner, 10 Heisk. 447; Boyd v. Reed, 6 Heisk. 631; Waller v. Shannon, 53 Miss. 500; Johnson v. Crippen, 62 Miss. 597; Voorhies v. Bonesteel, 16 Wall. 30, 21 L.Ed. 271.
Chancery courts invariably hold where the answer is responsive to the bill and positively denies the matters charged, and the denial has respect to a transaction within the knowledge of the respondent, the answer is evidence in his favor.
Godden v. Kimmell, 99 U.S. 201, 25 L.Ed. 431.
Even if the bill of complaint were sworn to on positive knowledge, the answers would still be evidence for the defendant.
Section 383, Code of 1930; Shackelford v. Brown, 72 Miss. 380, 17 So. 896.
The complainant cannot in any way impeach the answers, for by requiring sworn answers he made the defendants his witnesses.
Shackelford v. Brown, 72 Miss. 380; 1 A.L.R. 48, 77, 105-106; Murray v. Johnson, 1 Head, 35; Bellows v. Stone, 18 N.H. 465; Section 381, Code of 1930; Brown v. Mortgage Co., 86 Miss. 388, 398; 21 C.J. 561; Am. File Co. v. Garrett, 110 U.S. 228, 28 L.Ed. 149; 10 R.C.L. 545, sec. 328; Lenox et al. v. Prout, 3 Wheat. 520, 4 L.Ed. 449, 451; Development Co. v. Silva, 125 U.S. 247, 31 L.Ed. 678; Petrie v. Wright, 6 S. M. 647.
Argued orally by Sylvanus W. Polk, for appellant, and by L.A. Smith, Sr., for appellee.
In October, 1930, Miss Helen B. Fant executed a deed to land owned by her to her cousin, Lester Glenn Fant, Sr. Some time thereafter she executed another deed to land to Lester Glenn Fant, Jr., a son of Lester Glenn Fant, Sr. The first of these deeds recites a consideration of ten dollars and other valuable consideration; the second recites a consideration of "natural love and affection." These two deeds conveyed approximately one thousand acres of land, being all of the real property owned by the grantor, who was then eighty-three years of age, and was becoming, and shortly before her death became totally, blind. When the second deed was executed, she also executed a will bequeathing her personal property; the legatees therein being Lester Glenn Fant, Sr., and the complainants in the court below. Miss Fant died about three years after executing the first of these deeds. This suit is by her heirs at law, and is for the purpose of canceling these two deeds. The bill alleges two grounds therefor: First, that at the time the deeds were executed Miss Fant was without contractual mentality; and, second, that they were obtained by undue influence brought to bear upon her by the grantees. The case was tried on bill, answer, and proof, and the court expressly adjudicated that neither of these two allegations was proven.
As to the mental capacity of Helen B. Fant, the evidence is not of such character as would warrant the reversal of the holding of the court below.
The bill charges that a confidential relation existed between Helen B. Fant and Lester Glenn Fant, Sr. and Jr., "and each of them were able and did procure by undue influence the said instruments from the said Helen B. Fant; that by means of suggestion, solicitation, advice, argument and persuasion, the defendants dominated and subrogated the will of the said Helen B. Fant, in having her go through the formality of supposedly executing said instruments." These allegations were expressly and categorically denied by the answers of the two grantee Fants. We will assume that the evidence, plus some admissions in his answer, discloses that a confidential relation existed between Helen B. Fant and Lester Glenn Fant, Sr., but it does not disclose any such relation between her and Lester Glenn Fant, Jr. The two deeds were prepared by Lester Glenn Fant, Sr., but wre not signed or acknowledged in his presence. The first was signed and acknowledged before a chancery clerk at the grantor's residence. The clerk testified that he read the deed to her, and she said "she knew what the deed was, what land it was and . . . it was what she wanted." The second was signed in the directors' room of a bank, of which Lester Glenn Fant, Sr., was president, in the presence of the notary, who took her acknowledgment and two gentlemen who then and there attested her will, hereinbefore mentioned, all of whom say that the deed was read to her. She there said to the notary, "I am deeding this land to Glenn, I want him to have it." The evidence does not disclose that any influence whatever was brought to bear by Lester Glenn Fant, Sr. or Lester Glenn Fant, Jr., on Helen B. Fant to procure the execution of the deeds.
Neither of the defendants testified at the trial. The bill was sworn to by one of the complainants therein; the affidavit alleging that "the allegations of said bill are true as therein contained, to the best of her knowledge, information and belief." Answer under oath was not waived, and the answers of the defendants were sworn to by them; their affidavits alleging that "the facts shown by way of averment and denial contained in the above answer are true and correct as stated in said answer."
Section 383, Code of 1930, is as follows: "The rule requiring two witnesses, or one witness and corroborating circumstances, to overthrow an answer denying the allegations of the bill, is abolished in all cases where the bill is sworn to by the complainant; and such an answer shall have only such weight and credit as in view of the interest of the party making the same, and the other circumstances of the case, it may be fairly entitled to."
Was the bill here sworn to within the meaning of this statute? The oath required by the statute must be positive and on knowledge, not mere information and belief. "The object of that section is to entitle complainant to swear to his bill, and thus by putting his oath against that of defendant, to get clear of the rule requiring two witnesses, or one witness and corroborating circumstances, to overthrow an answer denying the allegations of the bill." Jacks v. Bridewell, 51 Miss. 881. The defendant must swear to his answer on knowledge and not on information and belief in order to obtain the benefit of the rule. Carpenter v. Edwards, 64 Miss. 595, 1 So. 764; Snell v. Fewell, 64 Miss. 655, 1 So. 908; Toulme v. Clark, 64 Miss. 471, 1 So. 624; Purvis v. Woodward, 78 Miss. 922, 29 So. 917; Stewart v. Coleman Co., 120 Miss. 28, 81 So. 653. The same rule, of course, must apply to a complainant; there being nothing in the statute showing a contrary intention.
The stenographer's transcript of the evidence discloses that the attention of the court below was called to the fact that these answers were sworn to, whereupon counsel for the complainants said that the defendants are not competent witnesses under section 1529, Code of 1930. These defendants may not be competent witnesses in their own behalf under that section, but that fact, if such it is, is of no consequence here, for "the rule as to the effect of an answer responsive to a bill is not affected by the incompetency of the respondent as a witness." Saffold v. Horne, 71 Miss. 762, 15 So. 639; Griffith's Chancery Practice, section 364. The complainants by compelling the defendants to testify, waived their statutory incompetency as witnesses. Birchett v. Hundermark, 145 Miss. 683, 110 So. 237.
There being no evidence supporting the bill's allegation that the defendants procured the deeds by the exercise of undue influence over the grantor, the answer's sworn denial has not been overturned. But it is said that the execution of the deeds, plus the confidential relation existing between the grantor and Lester Glenn Fant, Sr., shows prima facie that the deeds are invalid. This we will assume is true as to the deed to Lester Glenn Fant, Sr., but express no opinion as to the application of this rule to the deed of Lester Glenn Fant, Jr. This prima facie presumption merely shifts the burden of giving evidence from the person attacking such a deed to the person defending it, and casts on him the burden of overcoming the presumption. In other words, a prima facie case of fraud is made by proof that a confidential relation existed between the grantor and the grantee of a deed. But this burden was met by the oath to the answer. The complainants could have left this matter at large by merely waiving the oath of the defendants to their answers. Having required this oath, they subjected themselves to the burden of overcoming it by two witnesses, or one witness and corroborating circumstances. Had evidence of undue influence been introduced by the complainants, it may be that this presumption of invalidity would have added weight thereto, as to which, however, we are not here called on to express an opinion.
On the issues as to the mental capacity of Helen B. Fant, the appellants complain of the exclusion of certain evidence claimed to bear thereon. But the rulings thus brought under review, under well-settled rules, present no reversible error, if error at all.
Affirmed.