Opinion
No. 39088.
February 8, 1954.
1. Equity — evidence — deed procured by fraud — set aside.
In action by aged grantor to set aside deed to close friend alleging fraud in its procurement, fiduciary relation, mistake and mental weakness of grantor, where testimony was conflicting, evidence sustained finding that deed was procured by fraud.
Headnote as approved by Ethridge, J.
APPEAL from the chancery court of Washington County; J.M. FORMAN, Special Chancellor.
E.J. Bogen, Greenville, for appellant.
I. Cited and discussed the following authorities: Ayres v. Mitchell, 11 Miss. 683, 3 Sm. M. 683; Burnett v. Smith, 93 Miss. 566, 47 So. 117; Christian v. Green (Miss.), 45 So. 425; Clark v. Hartt, 56 Fla. 775, 47 So. 819; Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41; Day v. Davis, 64 Miss. 253, 8 So. 203; Dixon v. Milling, 102 Miss. 449, 59 So. 804, 43 L.R.A. (N.S.) 916; Gillis v. Smith, 114 Miss. 665, 75 So. 451; Johnson v. Jones, 21 Miss. 580, 13 Sm. M. 580; Jones v. Smith, 33 Miss. 215; Lee v. McMorries, 107 Miss. 889, 66 So. 278, L.R.A. 1915B, 1069; Lowrey v. Lowrey, 111 Miss. 153, 71 So. 309; Ralston v. Turpin, 129 U.S. 663, 32 L.Ed. 747, 9 S.Ct. 420; Wall v. Wall, 177 Miss. 743, 171 So. 675; Wynn v. Kendall, 122 Miss. 809, 85 So. 85; 26 C.J.S., Secs. 55, 209, pp. 270, 648; 10 R.C.L. pp. 294-304; Griffith's Miss. Chancery Practice, Sec. 589.
E.B. Taylor, Greenville, for appellee.
I. The decree of a Chancellor should not be disturbed on the facts, unless it is manifestly wrong. Bank of Lauderdale v. Cole, 111 Miss. 39, 71 So. 260; Bland v. Bland, 105 Miss. 478, 62 So. 641; Bradbury v. McLendon, 119 Miss. 210, 80 So. 633; Butler's Estate v. McQuarters, 210 Miss. 86, 48 So.2d 617; Dodson v. McElbreath, 216 Miss. 525, 62 So.2d 885; Evans v. Sharbrough, 106 Miss. 687, 64 So. 466; Freeman v. Freeman, 107 Miss. 750, 66 So. 202; Glover v. Falls, 120 Miss. 201, 82 So. 4; Heard v. Cottrell, 100 Miss. 42, 56 So. 277; Humber v. Humber, 109 Miss. 216, 68 So. 161; Jackson v. Mims, 123 Miss. 78, 85 So. 124; Johnson v. Yazoo County, 113 Miss. 435, 74 So. 321; Lee v. Wilkinson, 105 Miss. 358, 62 So. 275; Lott v. Hull, 104 Miss. 408, 61 So. 421; Reichman Crosby Co. v. Dinwiddle, 117 Miss. 103, 77 So. 906; Shipman v. Lovelace, 214 Miss. 241, 58 So.2d 657; Southern Plantation Co. v. Kennedy Heading Co., 104 Miss. 131, 61 So. 166.
II. Whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a Court of equity will, upon proper and reasonable application of the injured party or his heirs, interfere and set the conveyance aside. Austin v. Von Seutter (Miss.), 139 So. 174; Bourn v. Bourn, 163 Miss. 71, 140 So. 518; Brooks v. Brooks, 145 Miss. 847, 111 So. 376; Clark v. Lopez, 75 Miss. 932, 23 So. 648; Ham v. Ham, 146 Miss. 161, 110 So. 583; Johnson v. Hall, 87 Miss. 87, 40 So. 1; Leach v. Hirshman, 90 Miss. 723, 44 So. 33; Nubby v. Scott, 186 Miss. 309, 190 So. 911; Puryear v. Austin, 205 Miss. 591, 39 So.2d 257; Webb v. Webb, 99 Miss. 235, 54 So. 840.
Appellee Dave Cannon brought this suit in the Chancery Court of Washington County against appellant John Lee Robinson. Its purpose was to set aside a deed of September 6, 1949, by which Cannon, an aged Negro man, conveyed to Robinson his home in the City of Greenville. In February, 1952, Robinson filed an unlawful entry and detainer action against Cannon in the county court, seeking to remove him from the house. After that Cannon brought the present suit against Robinson in the chancery court. The bill of complaint was grounded upon allegations of fraud in the procurement of the deed, the existence of a fiduciary relation between the parties, mistake by the grantor as to the effect of the deed, and the charge that appellee was in a condition of physical and mental weakness when the deed was executed, which coupled with the alleged fiduciary relationship and fraud caused appellee to execute a deed in praesenti when in fact he understood and thought it would go into effect only upon his death. The chancery court rendered a decree by which it cancelled the deed as having been procured by fraud.
On this appeal appellant argues that the undisputed proof shows that the parties acted in good faith with no fundamental, material mistake; that appellee, although in bad health, was not in a sufficiently serious condition to justify setting aside the deed for mental incapacity; that the evidence does not show the existence of a confidential or fiduciary relationship between the parties, or any undue influence exerted by appellant upon appellee; that the only testimony to support appellee's claim is his uncorroborated testimony; and that he is contradicted not only by appellant but by a disinterested witness, the notary public who took his acknowledgment to the deed. Appellant did not offer the testimony or depositions of the two subscribing witnesses to the deed.
(Hn 1) We have reviewed carefully the record, and will not extend this opinion by a recital of the evidence. We have concluded that the decree is in accord with the facts and the law. Hickey v. Anderson, 210 Miss. 454, 49 So.2d 713 (1951); Clark v. Lopez, 75 Miss. 932, 23 So. 648, 957 (1898); Webb v. Webb, 99 Miss. 234, 54 So. 840 (1911); Brooks v. Brooks, 145 Miss. 845, 111 So. 376 (1927); Nubby v. Scott, 186 Miss. 309, 190 So. 911 (1939); Bourn v. Bourn, 163 Miss. 71, 140 So. 518 (1932); Ham v. Ham, 146 Miss. 161, 110 So. 583 (1926); Puryear v. Austin, 205 Miss. 591, 39 So.2d 257 (1949).
The testimony of the notary public tends to support appellant's argument; but that officer had no knowledge of the fiduciary relationship between the parties, of appellee's illiteracy and ignorance (other than that he could not read), of what appellant had previously told or indicated to appellee concerning the effect of the instrument, and of what appellee thought was the effect of the deed, in the light of his confidence in appellant, whom he considered like a son, and upon which he relied. Accepting appellee's version, which the trial court did, Cannon conveyed to appellant his home worth $5,000 for no consideration whatever. Nor did appellee have any independent advice concerning this act which deprived him of the only place in which he had to live. Moreover, the testimony of the two parties themselves is substantially in conflict. Under these circumstances we would not be warranted in holding that the chancellor was manifestly wrong.
Affirmed.
Roberds, P.J., and Kyle, Arrington and Gillespie, JJ., concur.