In brief supporting the application for rehearing it is insisted (for the first time) that the doctrine of McLeod v. McLeod, 145 Ala. 269, 40 So. 414, 117 Am. St. Rep. 41, Hawthorne v. Jenkins, 182 Ala. 255, 260-261, 62 So. 505, Ann. Cas. 1915D, 707, and Keeble v. Underwood, 193 Ala. 582,586-589, 69 So. 493, is applicable to this cause, and that it has not been accorded appropriate, present effect in our decision that the burden of proof passed to the respondents (appellants) to show that the transaction evidenced by the deed of Mrs. M. A. Gibbons to her son, R. H. Gibbons, was "just, fair, and equitable in every respect," as declared in Waddell v. Lanier, 62 Ala. 347. The general doctrine of Waddell v. Lanier has not since been repudiated in this court; a doctrine forcefully stated, and applied to the relation of sister and brother, in Boney v. Hollingsworth, 23 Ala. 690, and since often reiterated. Its broad application has, however, been more recently restricted where the gift or transaction under inquiry evidenced a dealing between those standing in the confidential relation of parent and child and the child is the beneficiary of the bounty or act of the parent. In such circumstances the later view (illustrated in McLeod v. McLeod, 145 Ala. 269,40 So. 414, 117 Am. St. Rep. 41, among others) is that the presumption against the transaction assailed — resultant from the relation of confidence, viz., parent and child — will not be indulged or be accorded effect unless the evidence presented, including the surrounding circumstances, conduces to show that the natural dominance of the parent (assumed from considerations referable to the normal human relation) did not exist at the time or in respect of the transaction assailed. This is the distinction taken and given application in Dolberry v. Dolberry, 153 Ala. 434, 44 So. 1018, and Neal v. Neal,155 Ala. 604, 47 So. 66, and reaffirmed, in effect by discriminatory reference, in Keeble v. Underwood, at page 589 of 193 Ala., at pages 475, 476, of 69 South., and in Couch v. Couch, 148 Ala. 332, 42 So. 624, likewise reaffirmed in Keeble v. Underwood, supra. The Dolberry, Neal or Couch Cases have not been qualified, much less overruled. They proceed upon the theory that, where the evidence negatives the prevalence, at the time, of the dominance of the parent (the donor or grantor), the condition to the application of the doctrine of Waddell v. Lanier is satisfied, and, as there held, the burden shifts to the donee or grantee, or their successors in asserted right, to prove "satisfactorily" that the transaction is "just, fair, and equitable in every respect, *Page 638 and is not on the party seeking to avoid it to establish that it is fraudulent," or the result of undue influence. This view consists with the latest expression in Keeble v. Underwood,193 Ala. 582, 588, 590, 592, 69 So. 473, where it was pronounced and decided that the inquiry was whether the natural presumption of dominance on the part of the parent was negatived (a question for the jury in proper cases), and, if so found from the evidence, the burden of proof shifted to those claiming in virtue of the parent's act to show that the transaction was not affected with fraud or undue influence; thus declining to reaffirm the erroneous statement of the rule announced in Stanfill v. Johnson, 159 Ala. 546, 548, 49 So. 223, repeated in Sanders v. Gurley, 153 Ala. 459, 461,44 So. 1022, and in Hawthorne v. Jenkins, 182 Ala. 260,62 So. 506, Ann. Cas. 1915D, 707, that "actual undue influence" must be proven to avoid the transaction.
Of course, if the assailant of the transaction, asserting the ground that it was the result of undue influence exerted by the child on the parent, must show initially that "actual undue influence" was practiced to produce the parent's act, there could never be any occasion for even the existence of the presumption, shifting the burden of proof, much less recourse to the application of the presumption; because, obviously, when such an assailant of the transaction has done that — viz., shown "actual undue influence" — he would have established (if the triors of the issue credit his proof) the invalidating fact without the aid of any presumption. Since a presumption is a resultant only from an evidential fact or facts shown (Mathews v. A. G. S., 200 Ala. 251, 253, 254, 76 So. 17; Bower v. Bower, 78 N.J. Law, 387, 393, 74 A. 522 [Justice Garrison writing, distinguishing inference and presumption]), it is but trite to remark that the requirement of proof of "actual undue influence" necessarily excludes the existence of or recourse to a presumption in the premises.
The evidence for the complainant (appellee) shows that the son (grantee). R. H. Gibbons, resided with her on the land described in the conveyance, in the same dwelling for many years; that about two years before this instrument was executed he moved into a house 200 yards away, on the same land; that after the death of complainant's husband in 1905, R. H. Gibbons managed all the business affairs of his mother; that he was the only one to render such service, and that she was 75 years of age when the instrument in question was executed; that after the execution of the deed she continued to reside in the dwelling on the land; that she had only a little personal property outside of that conveyed by this deed; that the deed was not filed for record until after R. H. Gibbons' death in November, 1916; and that the complainant had "unlimited confidence" in her son, the grantee, and "was easily influenced by him to do anything that was his desire for her to do" — testimony to which no objection was interposed. Mrs. Millie Gibbons, widow of the grantee, testified that the complainant had "no business but to look after her housework." She also testified that her husband, the grantee, "maintained and supported Mrs. M. A. Gibbons," his mother, after the death of his father, Sam Gibbons; that R. H. Gibbons "farmed" the land and made this "support for her," the complainant; and that he, the grantee, had "the entire management of the lands there."
In view of the whole evidence, the presumption of the existence of the natural dominance of this parent, the grantor, was negatived, thereby, in consequence, imposing upon the respondents, who claim under the deed, the burden of proof to show that the transaction was fair, just, and equitable in every respect — a burden that has not been discharged.
The application for rehearing is overruled.
All the Justices concur.