                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 92-CA-00823-SCT
AUBREY C. GRIFFIN, JR.
v.
PAMELA G. NICOLAS ARMANA

DATE OF JUDGMENT:                           6/5/92
TRIAL JUDGE:                                HON. DENISE SWEET-OWENS
COURT FROM WHICH APPEALED:                  HINDS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                    B. KENDALL GRIFFIN
                                            J. PEYTON RANDOLPH, II
ATTORNEYS FOR APPELLEE:                     LISA B. MILNER
                                            GLEN K. TILL, JR.
NATURE OF THE CASE:                         CIVIL - REAL PROPERTY
DISPOSITION:                                REVERSED AND REMANDED IN PART - 8/8/96
MOTION FOR REHEARING FILED:                 9/20/96
MANDATE ISSUED:                             12/2/96




     EN BANC.


     DAN LEE, CHIEF JUSTICE, FOR THE COURT:


¶1. This appeal arises from a decision adverse to Appellant Aubrey C. Griffin, Jr. (Griffin) in the
Hinds County Chancery Court involving the ownership of a certain parcel of property in the State of
Florida. Griffin initiated this litigation against the Appellee, his niece Pamela G. Nicolas Armana
(Armana) to recover certain real and personal property owned by Griffin taken and held by Armana.
Armana filed a counterclaim against Griffin asserting that Griffin had published false and libelous
statements concerning Armana and charging Griffin with intentional infliction of emotional distress
and tortious interference with business.

¶2. After a two-day trial, the chancellor found that a confidential relationship as well as a fiduciary
relationship did exist between Armana and Griffin. However, the chancellor failed to cancel the deed
to real property in Florida and found that a $15,862.00 payment, made by Griffin to St. Stephen's
School on behalf of Armana's son, was a gift. However, the chancellor determined that certain
jewelry, once located in Griffin's safe deposit box, was Griffin's and Armana was ordered to return it
to Griffin. Finally, the chancellor denied any relief to Armana as to her counterclaim for damages for
libelous statements; no cross-appeal was taken from this denial. Griffin, aggrieved by the chancellor's
ruling appeals and assigns the following as error:

     I. WHETHER THE LOWER COURT ERRED IN NOT CANCELING THE
     WARRANTY DEED FROM GRIFFIN UNTO ARMANA AND RESTORING GRIFFIN
     TO TITLE IN THE FLORIDA PROPERTY,

     II. WHETHER THE LOWER COURT ERRED IN FAILING TO IMPOSE A
     CONSTRUCTIVE TRUST AS REGARDS CERTAIN REALTY AND PERSONALTY
     RIGHTFULLY BELONGING TO GRIFFIN OF WHICH ARMANA GAINED
     POSSESSION AND REFUSED TO RETURN TO GRIFFIN,

     III. WHETHER THE LOWER COURT ERRED IN FAILING TO AWARD GRIFFIN A
     JUDGMENT FOR THE $757.69 REMAINING IN THE LOWER COURT'S
     REGISTRY, SAID SUM REPRESENTING RENTAL INCOME FROM THE SUBJECT
     REALTY AND BEING RIGHTFULLY THE PERSONALTY OF GRIFFIN,

     IV. WHETHER THE LOWER COURT ERRED IN ADJUDGING THE $15,862.00
     LOANED ARMANA BY GRIFFIN FOR ARMANA'S SON'S EDUCATION TO BE A
     GIFT FROM GRIFFIN UNTO ARMANA'S SON, AND

     V. WHETHER THE LOWER COURT ERRED IN FAILING TO RENDER A FINAL
     JUDGMENT WHOLLY IN FAVOR OF GRIFFIN.

                                   STATEMENT OF THE CASE

¶3. Griffin, a seventy-six year old disabled veteran at the time this litigation commenced, lived alone
on his farm following the death of his wife in 1985. Armana, his niece, was an educated thirty-nine
year old who was residing in France at the time this litigation commenced. During a visit with family
in Texas, Griffin was reunited with his niece, Armana, whom he had not seen for several years.
Thereafter, Armana and her children began visiting Griffin at his farm in Crystal Springs, Mississippi.
In fact, her son Henri lived with Griffin between May 1988 and May 1989 while Henri attended
Millsaps College in Jackson, Mississippi.

¶4. Griffin also owned real property in New Smyrna Beach, located in Volusia County, Florida. This
property had previously belonged to his mother and, subsequent to her death in 1986, Griffin
acquired a fee simple title in the property (a one-fourth interest by intestate succession; the remaining
three-fourths interest acquired from his siblings). Griffin, in acquiring his sister May Ryan Callaway's
interest in the property, promised her that he would leave the property to Armana at his death. Griffin
drafted and executed a deed on December 8, 1987, conveying the Florida property to Armana;
however, Griffin did not deliver the deed to Armana, but he placed it in his safe deposit box to be
taken out upon his death.

¶5. Griffin opened a joint bank account with Armana at a Florida bank with $5,000.00 of his
individual funds. Armana added no personal funds into this account. Griffin permitted Armana the
use of his Visa charge card for emergencies. In addition, Griffin gave Armana a pearl necklace which
he kept in his safe deposit box, and he occasionally allowed her to wear other pieces of jewelry which
were also kept in his safe deposit box.
¶6. During the period of time between 1986, when Armana renewed her contact with Griffin, and
1989, when the litigation in the case sub judice was initiated, Armana enjoyed Griffin's hospitality and
trust. She had full use of his Mississippi and Florida homes, access to his safe deposit box, his
jewelry, his Florida checking account and his Visa card.

¶7. Sometime between December 8, 1987 (the date the deed was executed) and October 26, 1989
(the date of the deed's recordation), the warranty deed Griffin had drafted, conveying the Florida
property to Armana, was secretly removed from the safe deposit box where it had remained for
almost two years and recorded in Volusia County, Florida. There is conflicting testimony as to how
Armana obtained the deed and whether she had Griffin's consent to record it.

¶8. Griffin argues that several pieces of jewelry and the deed disappeared from his safe deposit box
between June 2, 1988 and October 31, 1989. Armana was the only other person on the box signature
card with Griffin and she entered the safe deposit box alone on October 3, 1989. Griffin alleges that
Armana took the deed and jewelry at this time without his knowledge or consent, and shortly
thereafter, while in Florida, she had the deed recorded without Griffin's knowledge or consent on
October 26, 1989.

¶9. Armana asserts that Griffin mailed the deed to her at her home in France in early 1988, and that
her husband forwarded it to her mother's Texas home in the fall of 1989. Armana's mother carried the
deed to her in Florida. Armana then took the deed to the courthouse for recording and it was
recorded on October 26, 1989.

¶10. There is also conflicting testimony as to the ownership of several pieces of jewelry which Griffin
had kept in his safe deposit box. Griffin argues that he was in possession of several pieces of jewelry
which belonged to his wife prior to her death and that he kept them and other family valuables in safe
deposit boxes at a local bank. Griffin noticed that several of these items of jewelry disappeared at the
same time the deed was discovered missing.

¶11. Armana argues that the pieces of jewelry in question were given to her by Griffin in 1988.
Armana alleges that the jewelry had belonged to her Aunt Frances, Griffin's wife, and that she had
wanted Armana to have them.

¶12. Finally, there is conflicting testimony as to an expenditure by Griffin on behalf of Armana's son
Henri in the amount of $15,862.00. Henri was in attendance at St. Stephen's School in Texas prior to
his applying for college at Millsaps College in Jackson, Mississippi. An outstanding tuition balance
was preventing his grades from being released to Millsaps for his registration. Griffin alleges that he
made the payment upon extremely short notice from Armana, expecting to be repaid in due time.
However, Armana and her son Henri allege that the money paid to St. Stephen's School was a gift
from Griffin to Henri and his mother.

¶13. On December 28, 1989, after noting the missing jewelry and becoming aware of the recordation
of the deed in Florida, Griffin filed his complaint in the Chancery Court of the First Judicial District of
Hinds County, Mississippi, seeking the cancellation of the warranty deed, the imposition of a
constructive trust and other relief. Griffin alleged that "in 1986 Defendant [Armana] began a
deliberate course of conduct specifically designed to exert undue influence upon Plaintiff [Griffin] for
her own material gain and to the detriment of Plaintiff [Griffin]." In his complaint, Griffin alleged that
Armana personally gained financially from her exertion of undue influence upon him by: (1) after
making repeated requests and the subsequent execution of a warranty deed to Armana, to be held by
Griffin until his death, secretly removing said warranty deed from safe deposit box and having it
recorded in Volusia County, Florida; (2) secretly removing and absconding with several pieces of
jewelry which had been secured in the same safe deposit box; (3) influencing Griffin to allow her the
use of his Visa charge card for emergencies and repeatedly making personal charges without the
knowledge or authorization of Griffin; (4) influencing Griffin to open a joint checking account in the
name of both parties and borrowing/using sums of money from Griffin without his consent; and (5)
influencing Griffin to pay the sum of $15, 862.00 to St. Stephen's School for a tuition debt owed by
Armana for her son's schooling upon a promise to repay. Griffin alleged that all of these acts were to
the detriment of Griffin and done as a result of Armana's undue influence upon her uncle.

¶14. Armana filed a special appearance to object to the court's jurisdiction and a motion to dismiss.
After a hearing, the chancellor entered an order finding personal and subject matter jurisdiction
proper in the matter and asserting said jurisdiction. Armana then filed her answer and counterclaim
alleging that Griffin had published false and libelous statements concerning Armana, and charging
Griffin with intentional infliction of emotional distress and tortious interference with business.

¶15. After a two-day trial, the chancellor found that a confidential relationship as well as a fiduciary
relationship did exist between Armana and Griffin. However, the chancellor awarded Armana title to
real property in Florida and found that a $15,862.00 payment, made by Griffin to St. Stephen's
School on behalf of Armana's son, was a gift to Henri. In addition, the chancellor determined that
jewelry, once located in Griffin's safe deposit box, was Griffin's and was to be returned to Griffin.
Finally, the chancellor denied any relief to Armana as to her counterclaim for damages allegedly
resulting from false and libelous statements made by Griffin. Griffin timely filed a Motion For
Reconsideration Or In The Alternative A New Trial And Other Relief. This motion was denied by the
chancellor on July 21, 1992. Armana did not appeal.

¶16. Following the entry of the court's final judgment, Griffin timely filed his notice of appeal with
this Court.

                                     STANDARD OF REVIEW

¶17. Our review of a chancellor's findings is well settled and very familiar. This Court will not disturb
the findings of a chancellor when supported by substantial evidence unless the chancellor abused his
discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.
Bowers Window and Door Co., Inc. v. Dearman, 549 So. 2d 1309 (Miss. 1989) (citing Bullard v.
Morris, 547 So. 2d 789, 791 (Miss. 1989)); Gibson v. Manuel, 534 So. 2d 199, 204 (Miss. 1988);
Johnson v. Hinds County, 524 So. 2d 947, 956 (Miss. 1988); Bell v. City of Bay St. Louis, 467 So.
2d 657, 661 (Miss. 1985); Culbreath v. Johnson, 427 So. 2d 705, 707-08 (Miss. 1983).

                                    DISCUSSION OF THE LAW


     I. WHETHER THE LOWER COURT ERRED IN NOT CANCELING THE
     WARRANTY DEED FROM GRIFFIN UNTO ARMANA AND RESTORING GRIFFIN
     TO TITLE IN THE FLORIDA PROPERTY.
¶18. This appeal proceeds against the backdrop of a facially valid deed which was placed in the land
records of Volusia County, Florida, in 1989. Courts should not lightly disturb the efficacy of such
instruments of conveyance. On the other hand, where a deed has been procured by one in
contravention of duties owed the grantor by reason of a confidential or fiduciary relationship existing
in law or in fact, our courts will not hesitate to intervene. Smith v. Estate of Harrison, 498 So. 2d
1231, 1233 (Miss. 1986); Murray v. Laird, 446 So. 2d 575, 580 (Miss. 1984); Hendricks v. James,
421 So. 2d 1031, 1041 (Miss. 1982). In such cases, this Court recognizes a presumption, albeit a
rebuttable one, that the conveyance was the product of undue influence exercised by the party owing
the duty upon the will of the dependant party. See In Re Will of Launius, 507 So. 2d 27, 29 (Miss.
1987); Leggett v. Graham, 218 So. 2d 892, 895 (Miss. 1969). Where the party owing the fiduciary
duty fails to overcome the presumption by clear and convincing evidence, the court will ordinarily set
aside the conveyance. Norris v. Norris, 498 So. 2d 809, 813-14 (Miss. 1986); Kelly v. Shoemake,
460 So. 2d 811, 819-20 (Miss. 1984); Murray v. Laird, 446 So. 2d 575, 580 (Miss. 1984). Justice
Hawkins, writing for the Court in Estate of McRae, noted the reasoning behind such decisions:

     Why is this rule necessary? It is because this is the only method available to frustrate the success
     of a greed in larcenous form, carried out with no one present but the dominant party and his
     dependent victim. It alone can nullify a closet advantage taken by the strong upon the weak and
     dependent, in which the malefactor only in the rarest instances would ever be detected. This is
     why the law declares that when there is a fiduciary or confidential relation, and there is a gift or
     conveyance of dubious consideration from the subservient to the dominant party, it is presumed
     void. This is not because it is certain the transaction was unfair; to the contrary, it is because the
     Court cannot be certain it was fair. As stated in Meek v. Perry, 36 Miss. at 246, "if the court
     does not watch these transactions with a jealousy almost invincible, in a great majority of cases,
     it will lend its assistance to fraud." Further, this is a "policy of the law, founded on the safety
     and convenience of mankind . . . preventing acts of bounty." And, the Court will not permit
     such a transaction to stand, "though the transaction may be not only free from fraud, but the
     most moral in its nature." Id. at 247. "The rule of law in these cases is not a rule of inference,
     from testimony, but a rule of protection, as expedient for the general good." Id. at 244.

Estate of McRae, 522 So. 2d 731, 737 (Miss. 1988).

¶19. It is important to note that in the case sub judice, Griffin was a living, active litigant who
testified at the two-day trial. The court was not required to guess or infer Griffin's intent or position
relative to the disposition of his real or personal property. Griffin trusted his niece, and his actions
were based on his trust. In the case of Henricks v. James, this Court reversed a chancellor's decision
and held that a deed should be set aside stating:

     Whenever there is a relationship between two people in which one is in a position to exercise a
     dominant influence upon the other because of the later's dependency upon the former arising
     from either weakness of mind or body, or through trust, the law does not hesitate to
     characterize such relationship as fiduciary in character. The basis of this relationship need not be
     legal; it may be moral, domestic or personal. Nor is the law concerned with the source of such
     relationship. The principles are universally affirmed by courts.

Henricks v. James, 421 So. 2d 1031, 1041 (Miss. 1982) (citations omitted).
¶20. In the case sub judice, Chancellor Owens found that a close confidential fiduciary relationship
existed between Griffin and Armana during the period prior to Armana's recordation of the deed to
the Florida property. The record clearly supports the chancellor's finding that Armana assisted Griffin
with his financial affairs and the running of his home, that she had a key to his safe deposit box, and
that she was entrusted with private and financial information. There is no question that Armana stood
in a confidential relationship to Griffin, and the chancellor correctly so ruled. However, the chancellor
erred with the reference "on several occasions" found in her opinion and judgment. Once confidence
is reposed in one person by another, it continues until violated or the ending of the relationship. Since
the presumption of undue influence was established, the burden was on Armana to rebut the
presumption by clear and convincing proof. Mullins v. Ratcliff, 515 So. 2d 1183 (Miss. 1987);
Murray v. Laird, 446 So. 2d 575 (Miss. 1984); McDowell v. Pennington, 394 So. 2d 323 (Miss.
1981).

¶21. This Court has held that the evidence of undue influence is usually circumstantial and intangible.
Phillips v. Ford, 250 Miss. 425, 164 So. 2d 908, (1964). "Affirmative and positive proof is needed
to overcome this presumption." Murray v. Laird, 446 So. 2d at 578. Frequently this Court has
quoted from Jamison v. Jamison:

     [I]t follows, from the very nature of the thing, that evidence to show undue influence must be
     largely, in effect, circumstantial. It is an intangible thing, which only in the rarest instances is
     susceptible of what may be termed direct or positive proof. The difficulty is also enhanced by
     the fact, universally recognized, that he who seeks to use undue influence does so in privacy.
     He seldom uses brute force or open threats to terrorize his intended victim, and if he does he is
     careful that no witnesses are about to take note of and testify to that fact. He observes, too, the
     same precautions if he seeks by cajolery, flattery, or other methods to obtain power and control
     over the will of another, and direct it improperly to the accomplishment of the purpose which he
     desires.

Jamison v. Jamison, 96 Miss. 288, 51 So. 130 (1910). See also Young v. Martin, 125 So. 2d 734,
737 (Miss. 1961); Sanders v. Sanders, 126 Miss. 610, 89 So. 261 (1921); Woodville v. Pizzati, 119
Miss. 442, 81 So. 127 (1919).

¶22. In the case sub judice, Griffin was a law school graduate. He drafted the warranty deed
conveying the Florida property to his niece himself. He trusted his niece and believed she would abide
by her promise to aid him in his older years. Griffin, a one-hundred percent disabled veteran, was
paralyzed in both feet and suffered an equilibrium problem. He needed assistance to run things at his
farm and around the house, and Armana promised to help him. In return, Griffin executed (but did
not deliver) a deed to the Florida property to Armana, placing it in a safe deposit box for safe keeping
until his death; upon which, she was to record the deed and take title to the property. This promise
was made in the presence of several people, including Tommy Jackson, Roseanne Barnes, Minnie
Wansley and Sandra Cooper, all of whom testified at the trial.

¶23. Griffin testified several times that it was not his intent to deliver the deed to Armana immediately
after drafting and executing it. He drafted the deed, when he did, to appease his sister and Armana,
who were both concerned that it go to Armana upon Griffin's death. The property was to remain
Griffin's until his death. Therefore he placed it in a safe deposit box for safe keeping. Armana had
access in order to facilitate disposition of the property after Griffin's death, and to prevent any
potential difficulties Armana foresaw with Griffin's son Ken.

¶24. Evidence, both testimonial and documentary, supported a finding that Armana did not act in
good faith in her confidential and fiduciary relationship with Griffin. Testimony of witnesses
supported Griffin's assertion that Armana had promised to take care of him in older years. As noted
above, they include Sheriff Jackson, Roseanne Barnes, Minnie Wansley and Sandra Cooper. Armana
herself, in a letter written to Mrs. Gene Wilson, a neighbor to the property in Florida who also
managed the property in Griffin's absence, admitted that "[h]e is not going to be happy, but he has
use of the house and I have my investment protected by transferring the title I have held for 2 years."
Armana had the locks changed and the power cut off. Why was Griffin going to be unhappy? And
how was he to have use of the property when Armana had the locks changed and the power cut off?

¶25. The chancellor erred in finding that Armana had rebutted the presumption of undue influence by
clear and convincing evidence. The chancellor further erred, upon examination of the facts in the case
sub judice, in finding that there is a presumption of delivery because the deed was recorded.
Therefore, this assignment of error is sound. The judgment of the chancellor is reversed and the deed
is set aside.

     II. WHETHER THE LOWER COURT ERRED IN FAILING TO IMPOSE A
     CONSTRUCTIVE TRUST AS REGARDS CERTAIN REALTY AND PERSONALTY
     RIGHTFULLY BELONGING TO GRIFFIN OF WHICH ARMANA GAINED
     POSSESSION AND REFUSED TO RETURN TO GRIFFIN.

¶26. Griffin argues that the chancellor erred in not imposing a constructive trust regarding certain real
and personal property Armana held which rightfully belonged to him. This Court has defined a
constructive trust as follows:

     A constructive trust is one that arises by operation of law against one who, by fraud, actual or
     constructive, by duress or abuse of confidence, by commission of wrong, or by any form of
     unconscionable conduct, artifice, concealment, or questionable means, or who in any way
     against equity and good conscience, either has obtained or holds the legal right to property
     which he ought not, in equity and good conscience, hold and enjoy.

Planters Bank & Trust Co. v. Sklar, 555 So. 2d 1024, 1034 (Miss. 1990) (citing Sojourner v.
Sojourner, 247 Miss. 342, 153 So. 2d 803, 807 (1963)). See also Conner v. Conner, 238 Miss. 471,
119 So. 2d 240 (1960).

¶27. Constructive trusts are created for the purpose of preventing unjust enrichment, whereby one
unfairly holding a property interest may be compelled to convey that interest to whom it justly
belongs. Allgood v. Allgood, 473 So. 2d 416 (Miss. 1985). "It is unjust enrichment under cover of
the relation of confidence, which puts the court in motion." Russell v. Douglas, 243 Miss. 497, 506,
138 So. 2d 730 (1962) (citing Sinclair v. Purdy, 139 N.E. 255 (N.Y. 1923) (Cardozo, J.).

¶28. In Russell v. Douglas, 243 Miss. 497, 505-506, 138 So. 2d 730, 734 (1982), this Court
summarized Mississippi constructive trust law.
     A constructive trust is a fiction of equity. It is the formula through which the conscience of
     equity finds expression. When property has been acquired in such circumstances that the holder
     of the legal title may not in good conscience retain the beneficial interest, equity converts him
     into a trustee. The equity must shape the relief and courts are bound by no unyielding formula.
     It arises regardless of intention or agreement, express or implied. The trust is raised by
     implication of law. Fraud need not be shown.

It is necessary only to establish such conduct and bad faith as would shock the conscience of the
court. Sojourner v. Sojourner, 247 Miss. 342, 153 So. 2d 803 (1963). It is the relationship plus the
abuse of confidence imposed that authorizes a court of equity to construct a trust for the benefit of
the party whose confidence has been abused. Summer v. Summer, 224 Miss. 273, 80 So. 2d 35
(1955).

¶29. An abuse of confidence within the rule may be an abuse of either a technical fiduciary
relationship or of an informal relationship where one person trusts in and relies upon another,
whether the relation is moral, social, domestic, or merely personal. The origin of the confidence
reposed is immaterial. A confidential relationship within the rule need involve neither a promise for
the benefit of another nor an express fiduciary relationship. 76 Am. Jur 2d Trusts §§ 201, 205-212
(1992).

¶30. Generally, a constructive trust will be raised where, at the time the promise is made, the grantee
does not intend to perform it, or it is intentionally false, or where confidential relationships exist
between the parties and there is no other consideration for the conveyance except the promise, or
where the promise is the inducing cause of the conveyance, no other consideration being given, and is
relied on by the grantor.

¶31. In today's opinion, this Court finds that Armana did wrongfully take title to the Florida property
by taking and recording the deed without the knowledge or consent of Griffin. Accordingly, the deed
is set aside and cancelled. The chancellor in the case sub judice found that Armana was in possession
of certain personal property, to wit, pieces of jewelry, properly belonging to Griffin and ordered that
it be returned. In light of the fact that Armana was living in France prior to trial, and that the trial
necessitated her return to Mississippi, the imposition of a constructive trust was a reasonable request
and the chancellor erred in not imposing one on Armana concerning the jewelry she had in her
possession.

                                ASSIGNMENT OF ERROR NO. 3


     III. WHETHER THE LOWER COURT ERRED IN FAILING TO AWARD GRIFFIN A
     JUDGMENT FOR THE $757.69 REMAINING IN THE LOWER COURT'S
     REGISTRY, SAID SUM REPRESENTING RENTAL INCOME FROM THE SUBJECT
     REALTY AND BEING RIGHTFULLY THE PERSONALTY OF GRIFFIN.

¶32. This issue was not addressed by the chancellor in either her findings or judgment. Therefore it is
a matter to be determined by this Court. Any funds, held in the court's registry, derived from rental of
the subject real property, would belong to the rightful owner of said property. As this Court finds
error as to the disposition of the Florida property addressed in issue I, the monies held in the court's
registry originating from the rental of the Florida property should be released to Griffin. He was and
is the rightful owner of the Florida property.

                                ASSIGNMENT OF ERROR NO. 4


     IV. WHETHER THE LOWER COURT ERRED IN ADJUDGING THE $15,862.00
     LOANED ARMANA BY GRIFFIN FOR ARMANA'S SON'S EDUCATION TO BE A
     GIFT FROM GRIFFIN UNTO ARMANA'S SON.

¶33. Griffin argues that the chancellor erred in finding the payment of $15,862.00 to St. Stephen's
School a gift to Armana's son, Henri. This Court has held that it cannot overturn a decree of a
chancellor unless it finds, with reasonable certainty, that the decree is manifestly wrong on a question
of law or interpretation of facts pertaining to legal questions. In re Enlargement of Boundaries of
Yazoo City, 452 So. 2d 837 (Miss. 1984).

¶34. Although there may have been sufficient evidence to support the chancellor's finding that
Griffin's payment of the outstanding tuition debt was a gift to Henri, there is conflicting testimony as
to whether the money was a loan or a gift to a loved family member. Simply put, it became a question
of credibility. However, the chancellor applied an improper legal standard. In requiring a showing of
fraud on behalf of Armana regarding the $15,862.00 payment to St. Stephen's School, the chancellor
applied the wrong legal standard. In light of the facts in the case sub judice and the chancellor's
finding of a confidential relationship, an unrebutted showing of undue influence was all that was
necessary. Fraud is too high a standard and not applicable in this case. Therefore, the chancellor erred
in finding the $15,862.00 payment to St. Stephen's School a gift.

¶35. The chancellor found that there was a confidential and fiduciary relationship between Griffin and
Armana. Such a finding raises the presumption of undue influence. To rebut this presumption,
Armana must show clear and convincing evidence that she did not exert undue influence on Griffin to
obtain the funds in question.

¶36. This Court, in Croft v. Alder, 115 So. 2d 683 (Miss. 1959), noted the following:

     [T]he rule applied in the case of gifts inter vivos, as by deed, [is] that where a confidential
     relation exists between donor and donee, it is presumptively void and the burden rests on the
     donee to produce clear and convincing evidence that the gift is free from the taint of undue
     influence . . . .

Id. at 687-88.

     When [a confidential] relation exists, and the parties thereto -- 'consciously and intentionally
     deal and negotiate with each other, each knowingly taking a part in the transaction, and there
     results from their dealing some conveyance or contract or gift, * * * the principle literally and
     directly applies. The transaction is not necessarily voidable, it may be valid, but a presumption
     of its invalidity arises . . . .' 2 Pomeroy Equity Jurisprudence (4th Ed.), § 957.

Id. at 687 (quoting Ham v. Ham, 110 So. 583, 584 (Miss. 1926)).
¶37. "With a gift inter vivos, there is an automatic presumption of undue influence even without
abuse of the confidential relationship. Such gifts are presumptively invalid." Madden v. Rhodes, 626
So. 2d 608, 618 (Miss. 1993). The Madden Court continued:

     The appropriate standard, then, is that no abuse of the confidential relationship must be proved
     to raise the rebuttable presumption of undue influence accompanying an inter vivos transfer.
     Nor does this Court require a finding of mental incompetence on the part of the grantor to raise
     the presumption. When a confidential relationship exists, the presumption arises automatically,
     to be rebutted by clear and convincing evidence presented by the one who wishes to uphold the
     validity of the gift.

Id. at 619.

¶38. We may never know exactly what transpired between Armana and Griffin concerning the
payment to St. Stephen's School. Although Griffin, Armana and Henri each testified, their testimony
is in conflict and therefore not conclusive. It is this problem that this Court's rule regarding the
presumption of undue influence seeks to alleviate.

¶39. As stated in Meek v. Perry, 36 Miss. 190, 246 (1858), "if the court does not watch these
transactions with a jealousy almost invincible, in a great majority of cases, it will lend its assistance to
fraud." Further, this is a "policy of the law, founded on the safety and convenience of mankind . . .
preventing acts of bounty." Id. at 247.

¶40. Armana argues that the payment was a gift to Henri, in consideration of his doing well in school
and helping his uncle around the house and on the farm. However, Henri received expense money
from his uncle, a car and gas charge card for his personal use, in addition to a roof over his head and
food in his stomach while he resided with his uncle.

¶41. Armana requested Griffin's assistance with Henri's tuition problem on very short notice. Armana
sent a mailgram on January 9, 1989, which reads:

     A.C. AND HENRY. TRIED TO WRAP UP MONEY SITU. BUT MUSYL APPEALED IN
     FACT. DON'T WORRY HANDWRITING PROVED FORGERY HEARING TEN JAN.
     TRYING TO GET TO U.S. END OF MONTH. CAN A.C. TAKE CARE OF ST.
     STEPHEN'S PAYMENT TO LIBERATE SCHOOL RECORDS BY 15 JAN. WILL CALL
     WHEN ETA FIRM. LOVE PAM."

¶42. Griffin testified that he spoke with Armana regarding the debt; that she stated that she expected
the case against the estate of her previous husband, Henri Nicolas, Sr., to soon settle; and that she
would pay him back. Griffin also testified that Henri assured him that he would be paid back, stating
"[U]ncle A.C., I appreciate this so much. I will certainly see that you get paid." Griffin paid this debt
under the undue influence of Armana.

¶43. In light of the chancellor's finding that a confidential relationship existed between Armana and
Griffin, a presumption of undue influence was raised which Armana failed to rebut with clear and
convincing evidence. The chancellor erred in finding that Griffin failed to prove fraud on Armana's
part regarding the payment of this money. This was not the proper legal standard applicable to the
case sub judice.

¶44. Accordingly, as to Assignment of Error IV, the ruling of the chancellor is reversed and
remanded for a hearing consistent with this opinion.

                                 ASSIGNMENT OF ERROR NO. 5


     V. WHETHER THE LOWER COURT ERRED IN FAILING TO RENDER A FINAL
     JUDGMENT WHOLLY IN FAVOR OF GRIFFIN.

¶45. Finding that the chancellor below erred as to assignments of error I, II, III, the Court reverses
and renders on these issues. The Court reverses and remands on assignment of error IV. This Court
cannot say that the lower court erred in failing to render a final judgment wholly in favor of Griffin;
however, the Court affirms this assignment of error as to issues I, II and III.

                                            CONCLUSION

¶46. Accordingly, it is the opinion of this Court that this case be reversed and rendered as to issues I,
II and III; thus setting aside and cancelling the deed from Griffin to Armana and imposing a
constructive trust on Armana relative to the personal property she possesses. This Court reverses and
remands as to issue IV, finding the chancellor below applied the wrong legal standard by requiring a
showing of fraud instead of undue influence.

¶47. REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.

PRATHER AND SULLIVAN, P.JJ., PITTMAN, ROBERTS AND MILLS, JJ., CONCUR.
BANKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE AND
SMITH, JJ.




     BANKS, JUSTICE, DISSENTING:


¶48. Because I believe that there was no manifest error in the chancellor's findings or application of
law, I respectfully dissent. I would affirm the judgment of the chancery court.

¶49. The majority states, without citation to authority, that once a confidential relationship is
established it continues until "violated or the ending of the relationship." Majority opinion, ante p. 10.
Accepting that as accurate, that principle does not justify today's holding. The clear import of the
chancellor's opinion is that that relationship, which was once confidential, had in fact ended. That
conclusion is supported by the evidence that at the times relevant to the transactions here in question
Armana was no longer in the country and no longer administering any of Griffin's affairs. That she
remained his niece and he may have retained affection for her is simply not sufficient for a
confidential relationship. See Cunningham v. Lockett, 216 Miss. 879, 63 So. 2d 401 (1953) (stating
that ties of blood alone are not sufficient to furnish the basis for a confidential relationship);
McKinney v. Weatherford, 7 So. 2d 259 (Ala. 1942) (stating mere relationship between grantor and
nephew not enough to establish confidential relationship). See also 26 C.J.S., Deeds, p. 776 (stating
that a deed will not be deemed the product of undue influence because motivated by natural affection
for the grantee, whether a brother, or a sister, or a brother and sister).

¶50. The chancellor found that at the time of the execution of the deed to the land Armana was not in
a position to exercise dominant influence over Griffin and that any presumption arising from the
sporadic confidential relationship between Griffin and Armana was overcome by the evidence. That
finding is amply supported by the record. At that time, Armana was not living with Griffin or in any
way controlling his affairs. Griffin was shown to be fully capable and independent of her influence.
Put simply, no undue influence was proven and there was no proof that Griffin's independent will was
in any way overridden. Although he suffered from certain physical disabilities, he had for years
managed his own affairs and was of sound mind and capable of doing so, even during the period that
Armana lived in Crystal Springs and assisted him. Griffin was a law school graduate who drafted the
deed in question himself. There is evidence that he did so in compliance, at least in part, with a
promise made to Armana's mother concerning the disposition of the property at the time that he
received the mother's interest in that property. Clearly, the finding that any presumption lingering
from a prior or existing confidential relationship had been overcome is sustainable. Norris v. Norris,
498 So. 2d 809, 813 (Miss. 1986) (stating that the critical question is whether a confidential or
fiduciary relationship exists between the grantor and the grantee at the time of execution of the deed);
Brown v. Brown, 199 So. 2d 243, 245 (Miss. 1967). This Court should not simply substitute its
judgment for that of the chancellor. Bridges v. Bridges, 330 So. 2d 260, 263 (Miss. 1976).

¶51. It is also my view that the Court errs in concluding that the trial court erroneously imposed a
fraud standard upon Griffin with respect to the alleged gift to Henri. The complaint and Griffin's
testimony charged fraud with reference to this transaction as well as undue influence. This was clearly
noted by the chancellor's opinion. She rejected both contentions and found that the transaction was a
gift. The undue influence claim was rejected based upon the fact that, at the time, as with the deed,
Armana was in France and had no control over Griffin's affairs. The fact that she accurately noted
that the burden was on Griffin to prove any fraud claim does not detract from her finding.

¶52. For the foregoing reasons, I would affirm the judgment of the chancery court.

McRAE AND SMITH, JJ., JOIN THIS OPINION.
