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09/15/95 JAMES EARL DIGGS v. JAMES O. BULLOCK AND

September 15, 1995

JAMES EARL DIGGS, APPELLANT
v.
JAMES O. BULLOCK AND BRYANT F. BULLOCK, APPELLEES



Before McMILLIN, P.j., Herring, And Hinkebein, JJ.

The opinion of the court was delivered by: McMILLIN, P.j., For The Court:

Diggs v. Bullock et al, 95-CA-01006, __ So. 2d __

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. DONALD B. PATTERSON

COURT FROM WHICH APPEALED: LINCOLN COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - REAL PROPERTY

TRIAL COURT DISPOSITION: FOUND DEEDS VOID AS TO LOUVENIA MARKHAM AND NO DAMAGES FOR TIMBER CUTTING.

DISPOSITION AFFIRMED IN PART AND REVERSED AND REMANDED IN PART - 7/14/98

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

This case comes before this Court as an appeal from a judgment of the Chancery Court of Lincoln County. The appellant is the successor in interest to the original plaintiff, Louvenia Markham, who died after this appeal was perfected. The suit was commenced by Markham to recover certain real property that she and her predeceased sister, Louvella Markham, had jointly owned but which had been the subject of several deeds executed by the sisters prior to Louvella's death in favor of the appellees, James O. Bullock and Bryant F. Bullock. Louvenia Markham claimed standing to assert her deceased sister's claim on the basis that the sisters owned the property as joint tenants with right of survivorship, so that, but for the deeds to the Bullocks, Louvenia Markham would have been the owner of a fee interest in the property on the death of her sister, Louvella Markham. Markham also sought certain relief concerning the rightful ownership of cattle maintained on the property and asserted a claim for damages for timber the Bullocks harvested from the property. Markham advanced several theories of recovery at trial but the sole issue before this Court on appeal concerning the real property is a claim that the deeds were procured through undue influence exercised by the Bullocks over the Markham sisters.

The chancellor found, as a matter of fact, that the Bullocks did not exercise undue influence in obtaining the deeds. However, the chancellor found that Louvella had exercised undue influence over Louvenia in persuading her to sign the deeds to the Bullocks. Based on that finding, the chancellor set aside the transfer of Louvenia's one-half interest in the property but affirmed the Bullocks' title to the one half interest conveyed to them by Louvella.

The Bullocks filed a cross appeal, claiming that the chancellor erred as a matter of law in holding that Louvella overmastered her sister, Louvenia's, will and compelled her to sign the deeds. The Bullocks also assert that, in the absence of any evidence of complicity by the Bullocks in Louvenia's actions, this purported undue influence by Louvella was not a proper legal basis to set ...


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