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APRIL 15, 1987





Today's appeal is presented by a mother who seeks to void an eleven year old inter vivos gift of land she made to her daughter some eleven years earlier. The mother proceeded below on two theories: (1) breach of fiduciary duties arising out of a de facto confidential relationship and (2) fraud. The Chancery Court held for the daughter on both issues, largely upon the predicate of factual findings. Having in mind familiar limitations upon our scope of review of fact questions resolved in the trial court, we affirm.



 Today's battle regards ownership of 160 acres of land, in Section 32, Township 2 North, Range 17 East in Clarke County, Mississippi. The property is just out of Carmichael in the Junction City community.

 The cast of characters includes:

 (1) Hilma West Anderson born March 4, 1911, Plaintiff below and Appellant here, the mother and grantor of the deed she here attacks. Hilma possesses an eighth grade education. She married B. Anderson on March 7, 1929, and at that time moved onto the property in dispute. She lived there in a house built in 1916 by her husband and has lived there continuously ever since. B. Anderson died on June 7, 1970.

 (2) Evelyn Anderson Burt is the eldest daughter of Hilma West Anderson and B. Anderson. Evelyn is one of the Defendants below and one of the Appellees here and was the grantee in the deed here disputed. Evelyn also lives on the subject property and has lived there for some 25 years.

 (3) Clyde Clifton Burt is the husband of Evelyn Anderson Burt. Clyde was the other Defendant below and is the other Appellee here. He lives on the property at issue with his wife Evelyn.

 Hilma and B. Anderson had two additional children. First is Clyde Darryl Anderson, their only son. Clyde also lives on the subject property. Clyde lives with Eunice Anderson, although it appears that he is not legally married to her as he has never been divorced from his wife Earline Anderson.

 Onie Mae Anderson Kelly, the other daughter of Hilma and B. Anderson, lives in either Clarke or Wayne County, but not on the property in dispute. Onie Mae is not a party to these proceedings.

 The 160 acre tract is centered in the south half of Section 32: that is, it consists of the east half of the SW 1/4 and the west half of the SE 1/4 of Section 32. The tract is squared and contains 160 acres.

 On June 14, 1960 - some eleven years before today's story begins - B. Anderson conveyed the property to his wife Hilma. The deed was not filed for record in the office of the Chancery Clerk of Clarke County until October 14, 1965. It appears that this was in effect a testamentary disposition, with B. Anderson simply wanting to be sure that title to his property was transferred as he wished it to be without leaving anything to chance upon his death. In June of 1970 when B. Anderson died, Hilma was 59 years old. She commenced receiving Social Security benefits at that time.

 The deed contested in this civil action was made by Hilma West Anderson on June 29, 1971, and given to Evelyn Anderson Burt. The deed conveyed all of the 160 acre tract to Evelyn. This deed was not placed of record in the office of the

 Chancery Clerk of Clarke County for some three years, the filing data reflecting that the deed was filed on July 12, 1974, and recorded on July 24, 1974.

 In July of 1971 Evelyn was the only member of the family living in Clarke County. The other daughter, Onie Mae Anderson Kelly, had moved away with her husband. Clyde Darryl Anderson was having marital difficulties and was estranged from his mother.

 The facts and circumstances leading up to the execution of the 1971 deed are in many particulars disputed. A few points, however, are uncontradicted. First, the property appears to be of some considerable value, at least at the present. The timber only has been appraised at approximately $75,000.00. Moreover, the deed in 1971 was given without consideration. It is valid as a deed of gift or not at all.

 Apparently about this time Hilma West Anderson suffered from a variety of physical disabilities, including diabetes, kidney and bladder ailments, cataracts, viscosity, arthritis, cold and flu. There is nothing in the record, however, to suggest that she was experiencing mental or emotional problems at the time. Rather, it appears that she conducted her own business affairs from 1970 until the date of trial.

 Hilma West Anderson testified that her daughter, Evelyn, in 1970 and 1971 nagged her to go ahead and convey the property to her. According to Hilma, her daughter wanted a deed so that she could" get started on the rooms I am going to build onto my house to take care of you, because I worry about you being down her by yourself. "Evelyn is also said to have told her mother that she should give the deed to Evelyn because, if she did not, when Hilma reached 65 years of age her taxes would be cut in half and if she passed away, her children would have to catch up on the back taxes and would never be able to do so and that they would lose the property. Hilma testified that she found out somewhere around 1975-1977 that this statement regarding taxes was incorrect. The present lawsuit to cancel the 1971 deed, however, was not filed until November of 1982.

 On July 29, 1971, Hilma went to the office of A. J. Reese, an attorney in Quitman, Mississippi. She was driven there by her daughter, Evelyn. There Hilma requested Reese to prepare the deed to the 160 acres. On that date she signed that deed conveying all of her interest in the property upon which she had been living since 1929. Reese has little memory of the day's events.

 At the time of the execution of the deed, there is no question but that Evelyn, of the three children, was the closest to their mother. Evelyn was the only one living in Clarke County and indeed was living on the same property. Clyde was in and out of Clarke County during 1971 but was not living there when the deed was executed. The other daughter, Onie Mae Anderson Kelly, was living in Wayne County at the time with her husband.

 There is evidence that Hilma Anderson and her daughter Evelyn had a joint checking account for a number of years, and that this account was terminated in 1982 when Hilma replaced Evelyn's name with Eunice Anderson. It is not clear when this account began or if it was in existence in the 1970-71 period. Also the record reflects that Hilma and Evelyn were parties to a joint savings account for funds which were deposited by Hilma.

 During the period following the death of B. Anderson in 1970, one interpretation of the record, the one obviously accepted by the Chancery Court, reflects a relatively normal mother-daughter relationship between Hilma and Evelyn. Evelyn would drive Hilma places, would perform various tasks and errands for her. All of this is quite consistent with the further conclusion that Hilma was mentally and intellectually independent.

 The circumstances of Clyde Darryl Anderson are important. Clyde was (and apparently still is) married to Earline Anderson and three children have been born of that marriage. It is not clear when Clyde and Earline broke up, but apparently they were not together in 1970 and 1971 as Clyde was in and out of Clarke County. Thereafter, Clyde was incarcerated in the Leake County Jail from November 14, 1972, through November 12, 1973, for failure to support his children. Clyde resided in Mobile, Alabama, beginning in 1974 and" got together "with Eunice in 1976. In October of 1978 ...

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