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AVANT v. JOHNSON ET AL.

April 1, 1957

LONNIE AVANT, INDIVIDUALLY, AND AS EXECUTOR OF THE WILL OF EMERETT JOHNSON, PLAINTIFF-APPELLANT,
v.
KING JOHNSON, JOSEPH JOHNSON, ELIJAH JOHNSON, PLUMMER JOHNSON, CLARA JOHNSON, WINNIE JOHNSON, TALETHA J. MOODY, MAGGIE J. WILSON, ILLA J. BRANTLEY, AND ACIE JOHNSON, DEFENDANTS-RESPONDENTS.



The opinion of the court was delivered by: Moss, Justice.


   The opinion of Judge Baker follows:
This is an action by Lonnie Avant, individually, and as executor of the will of Emerett Johnson, to set aside a deed bearing date January 9, 1952, but actually executed on January 10, 1952, on which date it was filed in the office of the Clerk of Court for Marion County and recorded in Deed Book A-56, at page 164, whereby the said Emerett Johnson, the widow of Ellison Johnson, a prosperous Negro minister and farmer, conveyed to the ten children of Ellison Johnson by a former wife, at a consideration of $4,000.00, all her interest amounting to one-third in three tracts of land situated in Marion County; the first tract containing 311.8 acres, more or less, known as the "Wahee Place"; the second containing 43.75 acres, more or less, and the third containing 7 acres, more or less, the latter two being known as the "Penderboro Place," appraised in Probate proceeding at $12,000.00; also her interest in the personal property of Ellison Johnson which was appraised at $1,465.00, to which sum should be added a mortgage not listed but upon which there was collected the sum of $1,070.00.

The defendants are all the children of Ellison Johnson by a former marriage. The plaintiff, Lonnie Avant, is one of the children of Emerett Johnson by a former marriage and is the executor under the Will of Emerett Johnson made some time prior to the execution of the deed sought to be set aside.

The alleged grounds for setting aside the deed are lack of mental capacity, fraud, undue influence and inadequacy of consideration, which is "a frontal assault upon the validity of the deed," Brock v. Brock, 218 S.C. 174, 61 S.E.2d 885, 888. The deed under attack is regular and valid on its face, which gives rise to the presumption that it is valid in all respects. Grant v. Hudson, 192 S.C. 394, 7 S.E.2d 2.

The evidence certainly supports the reasonable inference or conclusion that there is inadequacy of consideration if viewed strictly as a business or commercial transaction, but this, alone, does not suffice to set the transaction aside. It is only important in connection with the alleged factors of mental weakness, or lack of mental capacity, fraud and undue influence, Owens v. Sweat, 227 S.C. 112, 86 S.E.2d 886.

Emerett Johnson, the deceased-grantor, at the time of her marriage to Ellison Johnson, was a widow with children, there being eight, all adults, living at the time of her death in April of 1952. Ellison Johnson was a widower with ten children, which children are the grantees in the deed under attack, and the defendants in this action. Ellison Johnson died intestate on or about December 5, 1951, leaving as his heirs-at-law his widow, Emerett Johnson, and his children, the defendants.

Emerett Johnson suffered a stroke in 1949, and her condition grew progressively worse until her death in April, 1952. She was first treated by Dr. S.O. Cantey in September, 1951, who described her condition as paralysis of the left side, hardening of the arteries, and exhibited many references of cerebral arteriosclerosis. Dr. Cantey estimated "from the beginning she very likely suffered a dozen or so small strokes." From the date of the first stroke Emerett Johnson was practically an invalid and for several months prior to her death was a complete invalid, which latter period extended beyond September, 1951.

The mental condition of Emerett Johnson, not her physical condition, except in so far as her mentality was affected thereby is one of the cardinal features.

Ellison Johnson died sometime during the night of December 5th. In the morning of December 6th, the plaintiff, Lonnie Avant, moved his mother to his home where she remained until her death. On December 20, 1951, Emerett Johnson executed her last will and testament, leaving all of her property, real and personal, to Lonnie Avant, who was also appointed executor, to serve without bond. It is significant that on the dates of the execution of the will and deed the deceased was living with the sole devisee under her will, and not under the same roof with any of her stepchildren, the defendants.

The transaction with the deceased grantor, whether valid or invalid, was handled by Joseph Johnson, acting for himself and his brothers and sisters. There is no evidence that Joseph Johnson, or any of his brothers and sisters, were acquainted with farm values, or knew the value of their father's estate. In any event, to arrive at an offer to submit to Emerett for her interest Joseph Johnson went to the Judge of Probate for advice and was instructed to have the property appraised and to offer one-third the appraisal value. The appraisers appointed by the Court of Probate agreed upon a valuation of $12,000.00 for the real property and $1,465.00 for the personal property. Inadvertently omitted was a mortgage upon which there was later realized approximately $1,000.00. It was brought out in the hearing this appraised valuation was for tax purposes, but there is no evidence that Joseph was cognizant of this fact. Joseph then went to Lonnie's home and talked with Emerett who, according to his testimony, to which there was no objection, agreed to accept $4,000.00 for her interest. The money was borrowed through Mr. Franklin Cooper who employed S. R. Pridgen, Esq., of the Mullins Bar, to check the title, prepare the note, mortgage and deed, and attend to their proper execution. At this point it should be stated Mr. Pridgen was representing the lender and no one else. His only interest was the protection of his client and the record does not contain the slightest creditable inference or suggestion of improper conduct on his part.

On January 10, 1952, Mr. Pridgen, Mr. Cooper, Joseph and a sister, went to Lonnie's home to complete the transaction. No effort was made towards consummation until Lonnie could be located and be present, which required a lengthy wait. After Lonnie arrived, Mr. Pridgen first talked with Lonnie, at the request of Joseph, and, as related by Mr. Pridgen, Lonnie did not want his mother to sign the deed and made the statement — he did not think she was in her right mind. Mr. Pridgen thereupon sat down on the bed by the grantor, and, quoting from Mr. Pridgen's testimony, "I took the deed in my hand that I had prepared, and as simply as I could I explained to Emerett Johnson the contents of the deed. It was — I did not at any time tell her about the worth of the place, as that was no concern of mine. I was solely interested in representing my client, Mr. Cooper, in ascertaining if she was capable of executing a deed, because his mortgage would be based upon the deed.

"After I had explained it to her as simply as I could, telling her in detail what it contained, all of the real property and all of the personal property as owned by her deceased husband of which she had an interest. I then asked her if she desired to complete the transaction — I am not using the words I used — I could not say the words I used as I do not remember, but I also asked her if she knew the paper — what it was, and I wouldn't swear she said she knew it was a deed, or a paper, but there was no question in my mind as an attorney that she knew what the paper was and what she was doing. She made this statement, or to a similar effect: I want to sign the deed — I think Ellison's children should have the property — that was essentially what she said. As far as I was concerned, I was ready to complete the transaction. I turned to Mr. Cooper who was right in the small room. He was there and I was representing him, and I said there is no question in my mind as to the capacity of Emerett Johnson to execute the deed * * *.

"Joseph told me he did not want to go ahead unless Lonnie was satisfied as to the transaction, and I explained again to Joseph, the best I remember, that it was not necessary for Lonnie to sign the deed or sign any other paper; but he didn't want to complete the transaction unless Lonnie was satisfied, and Lonnie was talking quite loud to Joseph, saying his mother didn't know what she wanted to do, and generally talked between Joseph and the two sisters. And finally, Lonnie said he would not do anything unless Mr. Dixon would concur in the transaction, and I told Lonnie if he desired that I go back to Marion with him and take the deed, and go over the deed with Mr. Dixon, simply for the purpose of checking the deed and the consideration and what the deed contained, I would do that; but if he wanted to go back to Marion to go into the consideration — that when Mr. Cooper and myself went there, we thought that had been settled and we had been there a good while, and I didn't have time myself, and Mr. Cooper was wanting to get away. So finally, Mr. Cooper and myself said we had to leave and we stepped out of the door to go, and got in the car, and some one told Joseph and those to come on, but they lingered behind talking, and shortly afterwards, they called us back.

"I think Joseph opened the door and told us to come on in that Lonnie was satisfied. Just prior to that time, Robert Lee, the best I remember had come into the room through the back door, and I talked with Robert Lee about the transaction, and Robert Lee said certainly his mother knew what she was doing, and got on Lonnie, and asked him why he was causing all the disturbance, and he said you know mother wants to go ahead and let Ellison's children have the property — the deed is made and they are here prepared to carry it through, and asked Lonnie why he was carrying on so. And after we stepped back into the house, I went back to the bed and took the deed, and in my own handwriting, wrote Emerett Johnson's name and made her mark, and let Emerett Johnson touch the pen.

"I witnessed the deed along with Mr. Cooper. Because of the fact that Joseph was so interested in getting something from Lonnie, a receipt, I prepared on the back of a check — the only thing I could find — I think we got it out of the pocket of Mr. Cooper's car — a receipt for the money. I told Joseph that wasn't necessary, but he wanted Lonnie to sign it."

Lonnie signed the receipt, then decided against the transaction. Mr. Pridgen placed the money on the bed, and Lonnie was told by Emerett "to ...


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