September 12, 1997
Record No. 962398





J. Robert Stump, Judge
Present: Carrico, C.J., Compton, Stephenson,[1] Lacy,
Hassell, Keenan, and Koontz, JJ.

This is an appeal of an order overruling the report of a
special commissioner in chancery recommending that a deed be set
aside based upon the commissioner’s finding that clear and
convincing evidence established that the deed had been procured
by fraud.

On August 15, 1988, Joseph William Branham took Mazie Sowards
Branham, his mother, to the office of a notary public to execute
a deed. According to Mazie Branham, Joseph Branham had advised
her that the document she would sign would provide her with a
life estate in her home in Wise County, with the remainder
interest vesting in her daughter Deborah Kay Branham. The deed
Mazie Branham actually executed transferred the property to
Joseph Branham subject to her life estate. The deed was recorded
in the land records of Wise County on the same day.

On February 7, 1991, Mazie Branham filed a bill of complaint
against Joseph Branham seeking to have the deed set aside on the
ground that it was procured by fraud. A guardian ad litem
was appointed to represent Joseph Branham, who was at that time
incarcerated in the Bland Correctional Center. Joseph Branham
filed a pro se answer asserting that his mother had
freely transferred the property with full knowledge of the import
of the deed, but was now subject to influence of other family
members who wished to deprive him of his rights in the property
because of his incarceration.

The trial court referred the matter to a special commissioner
in chancery by decree of reference dated March 15, 1991.
Thereafter, on April 26, 1991, the commissioner held an ore
tenus hearing, receiving testimony from Mazie Branham, her
son Larry Don Branham, and the notary who witnessed the deed.
Joseph Branham was represented by his guardian ad litem,
who was an attorney, but did not appear or have counsel present
at the hearing.

The notary testified that she did not read the deed or inform
Mazie Branham of its content before the deed was executed. She
further testified that she recalled either Mazie Branham or
Joseph Branham saying that the deed was intended to convey an
interest in the property to Joseph because "he was the only
one [of several children] taking care of [Mazie Branham] and that
she wanted him to have the property." The notary believed it
was probably Joseph Branham who had said this, but could not
recall whether Mazie Branham indicated she had heard him.

Mazie Branham testified that at the time of the hearing she
was 81 years old, legally blind, and hard of hearing. She further
testified that she learned that the remainder interest in her
property had been deeded to her son from her 1990 tax notice. At
that time she realized that she had "made a bad
mistake" because she had intended the remainder interest to
go to Deborah Kay Branham. Although she conceded that her
signature appeared on the deed, she stated that she would not
have signed the deed had she known that it conveyed the remainder
interest to Joseph Branham. In response to questions from the
guardian ad litem and the commissioner, Mazie
Branham conceded that Joseph Branham had taken care of her for
two years prior to his incarceration. Although occasionally
asking that questions be repeated, she indicated that she
understood the nature of her complaint and the purpose of the
commissioner’s hearing.

Larry Don Branham testified that Joseph Branham had assisted
his mother while living with her, and that Deborah Kay Branham
had also lived with their mother for a part of that time and
assisted in taking care of her. He further testified that it was
the family’s understanding that Deborah Kay Branham would receive
the property at her mother’s death if she remained with her
mother, but that Deborah had subsequently moved away.[2]

Sometime after the commissioner’s hearing, Joseph Branham was
released from prison and retained counsel to represent him in the
suit. The record indicates that Joseph Branham sought and was
given additional time to supplement the record before the
commissioner, but no further evidence was offered.

During the interim between the commissioner’s hearing and the
filing of his report on January 19, 1993, in a separate court
proceeding on January 14, 1992, Larry Don Branham was named as
guardian for Mazie Branham who was at that time declared
"mentally and physically unable to care for herself or her
property because of her mental and physical condition"
resulting from organic brain syndrome. The trial court entered an
order amending the style of the suit to reflect the guardianship
and to permit the guardian to act in Mazie Branham’s name.

In his report, the commissioner found that the deed in
question was procured by fraud and misrepresentation and
recommended that the deed be declared void; that Joseph Branham
be required to convey his interest to Mazie Branham; or that a
special commissioner be appointed to do so.

Subsequently, numerous letters from counsel and ex parte
communications from the parties were received by the trial court.
Several letters from counsel for Mazie Branham urged the trial
court to enter a final disposition in the matter. One such letter
indicated that, on June 15, 1993, Joseph Branham executed a deed
of gift transferring his remainder interest in the property to
Georgia K. Gruszka and supplied the trial court with a copy of
that deed.

On July 15, 1994, the chancellor sent a letter opinion to
counsel expressing his intent to overrule the commissioner’s
report and to dismiss the bill of complaint. The express basis
for the chancellor’s determination was that, by reference to the
separate 1992 proceeding in which Mazie Branham had been declared
"incompetent," he did not accept her testimony from the
1991 commissioner’s hearing or in a subsequent deposition as

Mazie Branham filed a motion to reconsider with supporting
evidence to show that at the time of the commissioner’s hearing
she did not exhibit any signs or symptoms of her subsequent
dementia. This motion and a subsequent motion to reconsider were
overruled, and a final order overruling the report of the
commissioner and dismissing the bill of complaint was entered on
August 27, 1996. We awarded Mazie Branham this appeal.

We have repeatedly defined the standard of review for such
matters as follows:

While the report of a commissioner in chancery does not
carry the weight of a jury’s verdict, Code ? 8.01-610, it
should be sustained unless the trial court concludes that the
commissioner’s findings are not supported by the
evidence. . . . [W]here the chancellor has
disapproved the commissioner’s findings, this Court must
review the evidence and ascertain whether, under a correct
application of the law, the evidence supports the findings of
the commissioner or the conclusions of the trial court. Even
where the commissioner’s findings of fact have been
disapproved, an appellate court must give due regard to the
commissioner’s ability, not shared by the chancellor, to see,
hear, and evaluate the witnesses at first hand.

Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292,
296-97 (1984) (citations omitted); accord Yeskolski v.
, 253 Va. 148, 152-53, 480 S.E.2d 474, 476 (1997).

Here, the chancellor’s basis for disapproving the
commissioner’s findings depended upon "facts" not in
the record of this case. Moreover, even if the evidence of Mazie
Branham’s mental condition from the separate and unrelated
hearing was a permissible subject of judicial notice, the
chancellor’s opinion letter clearly indicates that she was not
judicially declared "incompetent" until more than eight
months after the commissioner’s hearing.

During the lengthy delays following the commissioner’s
hearing, Joseph Branham made no effort to rebut the evidence
taken at the commissioner’s hearing despite being afforded an
opportunity to do so. Nor did he offer any evidence of his
mother’s incapacity at the time of the commissioner’s hearing.
Thus, the evidence before the commissioner was entirely

Mazie Branham testified that she did not intend to convey an
interest in her property to Joseph Branham and that she would not
have signed the deed in question if she had known the deed would
do so. But, it is unrefuted that Mazie Branham was led to sign
the deed as a result of the fraud perpetrated by Joseph Branham.
The commissioner accepted the testimony of the witnesses as
credible. Accordingly, upon this record, the commissioner’s
findings are supported by the evidence, and his opportunity to
see and hear the witnesses should be afforded appropriate

For these reasons, we will reverse the judgment of the circuit
court, will declare the deed in question void, and will remand
the matter to the circuit court with directions that forthwith a
special commissioner be appointed to effect transfer of the
property back to Mazie Branham.

Reversed and remanded.





Justice Stephenson participated in the hearing and decision of
this case prior to the effective date of his retirement on July
1, 1997.

Additional evidence suggested that Joseph Branham had indicated
in a letter to his criminal defense attorney that he did not wish
to contest the proceeding to set aside the deed. Although the
commissioner indicated that a subpoena duces tecum would be
issued to obtain the letter and a deposition of the attorney was
noticed, the letter does not appear in the record and it does not
appear that the deposition of the attorney was ever taken.