I cannot concur in the result reached by the majority of the court. The difference between us relates to the issue of whether appellants have met the burden which the law imposes upon them. It must appear either that appellee, in the transaction with appellants, did not rely upon Mr. Verner as her agent and attorney, but that she relied upon independent advice of another in whom she had confidence, or that, though she did rely upon him, the transaction was fully understood by her, that she freely and voluntarily approved it, and that no advantage was taken of her, but that the transaction from her standpoint was fair, just, and reasonable. Scott v. Hardyman,218 Ala. 515, 119 So. 224; Kidd v. Williams, 132 Ala. 140,31 So. 458, 56 L.R.A. 879.
Mr. Verner was admittedly her confidential agent, attorney, and trustee, in whom she had great confidence. While so, and during the life of her husband; and of her stepfather, who were also apparently on confidential terms with her, he suggested to them, some three years before the sale, that it could be effected on the terms which were finally agreed upon, and he thought it advisable. He very carefully submitted the matter to her husband and stepfather for their approval before suggesting it to her. They did not then seem to approve it, and apparently nothing further occurred about a sale until after the death of her husband, and without further suggestion from Mr. Verner. The stepfather, Mr. Nunnelee, who was then living with appellee, apparently in a parental position to her, suggested to Mr. Verner that he thought it would be advisable. The sale resulted from this suggestion, after he had been advised by Verner to try and get a better price for the property, if he could. This he undertook to do and failed. He is now dead. There is no claim of collusion between him and Verner, nor other bad faith on his part. He acted for appellee in negotiating and closing the transaction whether by her authority or not. Mr. Verner had no apparent reason to suspect that appellee did not authorize, approve, or fully understand what he was doing in that respect for her. Mr. Nunnelee advised with other friends as to its desirability. Finally it was effected without any communication respecting it between appellee and Verner until the occasion of its closing. On that occasion Mr. Nunnelee was present with her. She seemed satisfied. I am not prepared to say that there was not sufficient independent advice to satisfy the law. I think that a fair inference from the evidence is that she did "perform an entirely free and unfettered judgment independent altogether of any sort of control" by Verner. I also think the evidence fairly shows it justice, fairness, and reasonable judgment from her standpoint. The property was mortgaged heavily, which also covered her other property. She had no reasonable expectation of paying the mortgage without selling something. Her income did not justify the expectation of that ever paying it. It was a burden upon her, and she was dependent for her support upon the income from her property. There were other liens against it. The year 1919, as is commonly known, was a good year in which to sell. It is a matter of common knowledge that values were generally well maintained everywhere. No better season for selling (as conditions then appeared) could well be suggested. The need was apparent. There was no opportunity to sell other property. Good judgment, I think, suggested a sale of a sufficient amount to relieve her of the burden of the liens. Many wise investors unloaded their holdings during such times, as is well known. Could people then foresee a future industrial activity for Tuscaloosa which would enhance property values? The all-important question is whether the price was fair, just, and reasonable. The value of real estate is always a difficult and uncertain problem. Even so with present values in any period. In perhaps every instance, informed, competent, honest men differ in opinion as to them. They are but the result of opinions. There is no market which fixes such values in a definite way. Many factors are controlling. They are almost innumerable. Anything which sheds light on the issue is material. Much depends upon business forecasts. What will the future be? No man can tell. What will future values be? No one can foresee. We are now looking backward, but they were looking into the future, and could not see what we now know. We cannot interpret conditions then by what has occurred later. The real issue is in the present, but that is affected by business forecasts for the future. However difficult it is to fix present values of real estate, the difficulty and uncertainty are many times increased after later events have occurred, and the effort is now to go back and say what they were several years ago, when the factors which control them have materially changed, and the future of that period has become a reality. Is one's memory accurate as of that date. Did he endeavor at the time to judge and fix in his mind and memory a value which he now clearly recalls?
The evidence was in much conflict as to the value of the property at the time of the transaction in 1919. An effort was made to sell it *Page 44 otherwise. They tried to get what they could from others, and received no bids. Dealers in such property were not enthusiastic. The reasonable inference from the evidence is that no one else would give more for the property. Some months afterwards, when some criticism had been expressed on the street, Mr. Verner, in a written communication to appellee, offered to rescind to the extent of his interest — all that he could do. She declined, not because there was no offer to rescind as to all interests, but stated that she was fully satisfied with the whole transaction. She apparently remained satisfied for several years. She waited until after the death of Mr. Nunnelee, and after values had increased, and Verner had sold his interest (she previously declining to take it), and until friction arose as to the use of the alley. Then comes the suit. After all the years of honest, intelligent, capable service, he (Verner) is now discredited and held up to the world as having violated a sacred trust. Such is the irony of fate.
I do not think controlling importance should be given to an inference that she may not have fully understood that she was conveying half of the alley. There was no deception, and she must have fully understood it very soon afterwards, because a building was then put upon it. Yet she made no complaint.
I think that the evidence shows no unfair dealing, but that, under the circumstances and conditions which people could then see, the transaction was apparently fair and just to appellee, and that she should not now, because of its enhancement in value, obtain the benefit of such enhancement by reflecting upon the integrity of a faithful servant.
I cannot concur therefore in the result reached by the majority of the court.