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09/01/95 CHRIS O. FIELDS v. BONNER C. PHELPS

September 1, 1995

CHRIS O. FIELDS, SR., PAUL GREGORY DUPREE, AND WALTER CLAYTON DUPREE
v.
BONNER C. PHELPS, SR., AND SYBIL L. PHELPS



Appeal from Jefferson Circuit Court. (CV-94-134). Roger Halcomb, TRIAL JUDGE.

Released For Publication February 20, 1996.

Wright, Retired Appellate Judge. All the Judges concur.

The opinion of the court was delivered by: Wright

WRIGHT, Retired Appellate Judge

Chris O. Fields, Sr., Paul Gregory Dupree, and Walter Clayton Dupree appeal from the trial court's decision in favor of Bonner and Sybil Phelps in an action for the reformation of two deeds. This case is before this court pursuant to § 12-2-7(6), Ala. Code 1975.

The Phelpses owned several tracts of real estate, one of which encompassed their home in Baldwin County, Alabama, along with adjacent property, and several lots in Bessemer, Alabama. The Phelpses retained an attorney and requested that the attorney prepare appropriate deeds to convey an interest in their property to their daughter, Shirley Fields. Mr. Phelps testified, "We were wanting all our property to where when we died, it would go to our children without any hassle. We wanted control of it until we died." He said that he wanted to transfer title because he wanted to "avoid probate" and because his daughter, Shirley, had agreed to move to Gulf Shores, to build a house on their property, and to take care of them in their old age.

Mr. Phelps testified that he understood that the attorney was going to reserve a "life estate" on their behalf. He testified, "[The attorney] said Life Estate. When [the attorney] said that, I thought he was talking about it as [if] we would have control over it to buy ourselves whatever." At trial, when Phelps was questioned as to what he meant by control over it and as to what was his understanding of his intent, he stated, "If I took a notion to sell it I could sell it because it was my property." Phelps stated that he thought the attorney understood that they "had to have" the property for future monetary emergencies that could arise from their old age. When questioned as to whether there was any conversation concerning where the property would go if Shirley predeceased the Phelpses, Mr. Phelps responded, "We wanted it to come back to us."

The attorney testified that he did not know how to draft a deed giving title to Shirley and retaining control in the Phelpses other than limited control through a life estate. He testified that he executed the deeds in the manner that he did for estate tax purposes. The Phelpses, however, had no taxable estate. On cross-examination it was suggested to the attorney that a reversion clause or a power to sell clause could have been inserted to express the intent of the Phelpses.

The Phelpses testified that their income consisted of Social Security benefits and weekly payments made to them by their son, who operates an automobile repair shop located in Bessemer. They testified that they had attempted to get jobs but that at their age, it was impossible. Mrs. Phelps earned minimal income working at supermarkets, serving samples of food. Mr. Phelps occasionally did the same.

The deed to the Bessemer property was executed in October 1992. The deed to the Gulf Shores property was executed in April 1993.

In May 1993 Shirley was diagnosed with bone cancer. During that period the Phelpses found that there were some errors in the deeds. The granting clauses in the deeds were not consistent with the habendum clauses. The Gulf Shores deed described property that had previously been sold to a third party. During this time the Phelpses also realized that should their daughter predecease them, the property would go to her heirs and would not revert back to them.

During her illness the Phelpses advised their daughter of some of the mistakes contained in the deeds. Upon learning of the mistakes, Shirley directed her husband, Chris Fields, Sr., to retrieve the deeds from their safety deposit box. At her house in Bessemer, Shirley handed the deeds to her father, with words to the effect, "do what must be done to the deeds."

Shirley died in December 1993. She was survived by her husband and Paul and Walter Dupree, her children from a previous marriage. Shortly thereafter, the Phelpses filed this action, requesting that the trial court rescind the subject deeds and return the property to them.

It is well settled that one of the established powers of equitable jurisdiction is the ability to reform a written deed to make it conform to the intention of the parties. Clemons v. Mallett, 445 So. 2d 276 (Ala. 1984). One ground ...


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