Bullard v. Crawley ( 1987 )

Per Curiam:

Georgia Ruth Bullard brought this action to set aside two deeds executed in favor of Steve and Karen Crawley. Mrs. Bullard died during the pendency of the litigation and her executor was substituted as plaintiff. The case was referred to a master, who set aside the deeds based upon findings of a breach of confidential relationship and undue influence. The circuit court held there was no confidential relationship between Mrs. Bullard and the Crawleys, and there was no proof the deeds were executed under undue influence, duress or coercion. Accordingly, the court ruled in favor of the Crawleys. We affirm.

An action to set aside deeds is a matter in equity. Smith v. McClam, 280 S. C. 398, 312 S. E. (2d) 260 (Ct. App. 1984). In an action in equity where the circuit judge and the master are in disagreement as to findings of fact, this court may make findings in accordance with its own view of the preponderance of the evidence. Townes Assocs., Ltd. v. City of Greenville, 266 S. C. 81, 221 S. E. (2d) 773 (1976).

Mrs. Bullard operated a guest home in Myrtle Beach. Karen Crawley (Karen) met Mrs. Bullard while staying as a guest in the home in 1969. She and her husband returned for vacations each year and a friendship developed.

In 1980, Mrs. Bullard became ill and was hospitalized for congestive heart failure. She was 71 years old at that time. On August 27, 1980, Karen came to Mrs. Bullard’s home to care for her. She acted as Mrs. Bullard’s physical helper, doing housework, shopping and driving. In return Karen received a salary and room and board for herself and her daughter.

Prior to February 1981, Karen had conversations with Mrs. Bullard’s physician and with a close friend of Mrs. Bullard’s in which she expressed concern that she would not receive any property from Mrs. Bullard’s estate. She told them she would not continue caring for Mrs. Bullard unless she got some “concrete papers.”

On February 1, 1981, Mrs. Bullard, while in the hospital, executed a will which was witnessed by her doctor and a nurse. In this will all of Mrs. Bullard’s property, real and personal, was left to the Crawleys. According to these two witnesses, Mrs. Bullard was of sound mind and knew what she was doing at the time. She was discharged from the hospital on February 2.

The deeds in question were executed on February 2 and 3, 1981, at the law offices of H. V. Bellamy, Jr. They conveyed fee simple title in two parcels of realty to Steve and Karen Crawley, reserving life estates in Mrs. Bullard. The consideration recited was $5.00, love and affection. It may be inferred that part of the consideration was Karen’s agreement to care for Mrs. Bullard. All the witnesses concluded Mrs. Bullard understood what she was doing when the deeds were executed, and was under no duress.

Thereafter, however, Mrs. Bullard had a change of heart and became upset over what she had done. Karen initially agreed to reconvey the property to Mrs. Bullard, but later changed her mind. She left Mrs. Bullard’s and returned to her home in North Carolina.

The evidence relevant to Mrs. Bullard’s state of mind at or about the time the deeds were executed may be summarized as follows:

(1) Testimony of Peter Salussolia, who testified: that he was a neighbor of Mrs. Bullard’s for about thirty years; that he saw her frequently until just prior to her death; that Mrs. Bullard was strong-willed throughout the period he knew her; that a friendly relationship between Mrs. Bullard and Karen existed; that Karen performed menial tasks for Mrs. Bullard; that Mrs. Bullard stated several times that “I don’t know what I’d do without her”; that this statement was made after the will and deeds were executed but prior to Karen’s return to North Carolina; that he told Mrs. Bullard “she was a damn fool to let the girl go” because “she needed somebody there to take care of her and Karen was doing a good job.”

(2) Testimony of Evelyn Churchill, Mrs. Bullard’s hairdresser, who testified: that she had known Mrs. Bullard since 1973; that in 1980 Mrs. Bullard called upon her to come to the hospital and take her home; that she later met Karen, at which time Mrs. Bullard stated that she had known Karen for a long time and that Karen was going to stay with her; speaking of Mrs. Bullard, Mrs. Churchill testified “I think she was very indepen-. dent, strong-willed, straight-forward person is what I think about her, outspoken”; that Mrs. Bullard had stated Karen “agreed to stay with her because she didn’t want to see her put in a nursing home; I don’t know — there was a big discussion about being put in a nursing home, and Karen offered to stay with her”; that Karen did not exercise duress over Mrs. Bullard, who was in her right mind on the occasions that she saw her.

(3) After the deeds were executed, Mrs. Eleanor Schiller, a social worker at Grand Strand General Hospital, saw Mrs. Bullard on several occasions during her final hospitalization. On the dates that Mrs. Schiller saw her, Mrs. Bullard knew what she was doing.

(4) On February 9, 1981, Mrs. Bullard executed another will at the residence of Dr. G. P. Joseph, in the presence of Kathleen Bullard, in which she left her property to her late husband’s relatives. At that time Dr. Joseph found her to be “lucid and rational” and testified that he had no reason to believe she was in a different state of mind the week before when she executed the deeds.

(5) Mrs. Bullard was quite independent in January prior to the deeds’ being executed in February, as shown by Dr. McKay’s testimony wherein he stated that she “kicked Dr. Jordan out of the room.”

UNDUE INFLUENCE

Undue influence in the procurement of a deed may be shown in two ways. The party challenging the deed may show the existence of a confidential relationship between the grantor and the grantee. Once a confidential relationship is shown, the deed is presumed invalid. The burden then shifts to the grantee to affirmatively show the absence of undue influence. 23 Am. Jur. (2d) Deeds § 204 (1983). See also Hodge v. Shea, 252 S. C. 601, 168 S. E. (2d) 82 (1969); Page v. Lewis, 209 S. C. 212, 39 S. E. (2d) 787 (1946).

However, a finding of undue influence is not dependent upon the existence of a confidential relationship. 23 Am. Jur. (2d) Deeds § 204 (1983). See also Byrd v. Byrd, 279 S. C. 425, 308 S. E. (2d) 788 (1983). When no confidential relationship is alleged, the party challenging the deed must present evidence which “unmistakenly and convincingly” shows the grantor’s will was overborne by the grantee or someone acting on his behalf. In re Will of Smoak, 286 S. C. 419, 334 S. E. (2d) 806 (1985). Thus, the determination of whether a confidential relationship existed also determines which party has the burden of proof on the issue of undue influence.

A confidential relationship arises when the grantor has placed his trust and confidence in the grantee, and the grantee has exerted dominion over the grantor, Page v. Lewis. The essence of the relationship is the trust and confidence. 15A C. J. S. Confidential, pp. 351-58 (1967). Mere friendship between the parties is not sufficient. The relationship must be one implying confidence. 25 Am. Jur. (2d) Duress and Undue Influence § 44 (1966). A confidential relationship does not necessarily arise when the grantor depends upon the grantee for the necessities of life. Some evidence is required that the grantor actually reposed trust in the grantee in the handling of his affairs. McIntosh v. Dowdy, 625 S. W. (2d) 162 (Mo. Ct. App. 1981) [holding valid deed from grantor to the operators of nursing home in which grantor lived prior to death.].

The record shows clearly that Mrs. Bullard was dependent upon Karen Crawley for many things. However, there is little, if any, evidence that a relationship of trust and confidence existed between them.

We agree with the trial judge that no confidential relationship existed between Karen and Mrs. Bullard.

The burden was therefore on appellants to establish undue influence. This requires a showing that the grantor was unquestionably susceptible to undue influence as a result of her physical or mental condition or for some other reason. Clear evidence of opportunity and disposition by the grantee or someone acting for him to influence the grantor must be present. Hemingway v. Small, 284 S. C. 42, 324 S. E. (2d) 335 (Ct. App. 1984); Atkinson v. Belser, 273 S. C. 296, 255 S. E. (2d) 852 (1979).

There is no doubt Mrs. Bullard was in poor health when she executed the deeds. However, both before and after the deeds were executed, Mrs. Bullard was an independent person who relied solely upon herself to conduct her business affairs. When she decided she wanted the conveyances to the Crawleys cancelled, she reacted responsibly, discussing the matter with Karen and going to a lawyer’s office to review the matter. Mrs. Bullard commenced this action to revoke the deeds herself. While the evidence may suggest that Karen influenced Mrs. Bullard, it falls far short of the proof required for undue influence.

Affirmed.

Harwell and Finney, JJ., dissent in separate opinion.