75 Neb. 473 | Neb. | 1906
The questions raised in this court necessitate an examination of the petition at length. It is as follows: “Comes now the plaintiff, Arthur H. Ames, and for his cause of action against the defendants, Absalom Ames and George Ames, respectfully shows to the court: First. That Joseph P. Ames departed this life on the 14th day of April, 1901, in Washington county, Nebraska; that said Joseph P. Ames died intestate, leaving as his sole surviving heirs at law three sons, to wit, Arthur H. Ames, plaintiff herein, and Absalom Ames and George Ames, defendants herein. Second. That on and prior to the 8th day of March, in the year 1900, said Joseph P. Ames was, and for many years had been, the owner in fee simple of the following described lands and tenements, situated in said Washington county, Nebraska, to wit: (Here follows a description of the several parcels of land) all in Washington county, Nebraska. On said 8th day of March, 1900, said Joseph P. Ames made a pretended conveyance of said real estate to the defendants herein, Absalom Ames and George Ames, said conveyance being executed on the date aforesaid, but not delivered to the grantees therein named, the aforesaid defendants, during the lifetime of said Joseph P. Ames. That after the death of said Joseph P. Ames, and on or about the 1st day of May, 1901, the defendants herein obtained possession of said conveyance and caused the same to be recorded in the office of the county clerk of said Washington county, Nebraska, in book 34, p. 423, of the deed records of said county. Plaintiff further says that at the time said Joseph P. Ames signed said pretended deed he was wholly insane and incapable of executing or making any contract or conveyance of any nature or kind whatso
“Wherefore plaintiff prays that the aforesaid conveyance from said Joseph P. Ames to said defendants be canceled and held for naught; that plaintiff be adjudged to be the absolute owner of said undivided one-third of said real estate, and all thereof, and that plaintiff have and recover from defendants, in addition thereto, the sum of $1,500 on
An extended examination of the answers is not necessary to an understanding of the questions upon which the case now turns, and it will suffice to say that the .principal issue raised is as to the mental capacity of Joseph P. Ames to execute the deed. After the answers were filed, the plaintiff asked leave to amend the prayer of his petition by adding thereto the following: “And that the plaintiff have and recover from the defendants the possession of an undivided one-third of said real estate.” The court refused to permit the amendment. Afterwards, and before the cause was reached for trial, and again when it was reached, the plaintiff asked for a trial of the issues of fact to a jury, but the request was refused. A trial to the court without a jury resulted in a finding and decree for the defendants. The plaintiff brings the case here on error.
It is insisted on behalf of the plaintiff that the petition states a cause of action in ejectment, and that the court erred in refusing to submit the issues of fact to a jury. It may be conceded that the petition states facts sufficient to constitute a cause of action in ejectment. But it also states facts sufficient to entitle the plaintiff to a cancelation of the deed from Joseph P. Ames to the defendants, and other matters of equitable cognizance. The prayer shows that the plaintiff sought equitable relief, and that a part of the relief sought was such as the court could grant only in the exercise of its chancery powers. On the other hand, while a part of the relief sought might have been had in an action at law, no relief is prayed that the court, in the exercise of its plenary powers as a court of equity, might not have granted. And this would be true, even had the amendment to the prayer for relief been allowed, because, when a court of equity acquires jurisdiction over a cause for any purpose, it may retain the cause for all purposes, and proceed, to a final determination of all matters at issue in the case.
The plaintiff, in support of his allegations as to the mental incapacity of Joseph P. Ames, offered in evidence a verified ansAver which Joseph P. Ames had filed in an action brought against him in his lifetime. The action was upon a contract, and as a defense thereto Joseph P. Ames alleged in his ansAver that in 1883, at the time of the execution of said contract, he “was suffering from mental and physical prostration, and was non compos mentis.” Complaint is now made of the exclusion of this evidence.
The plaintiff produced a nonexpert witness, who testified fully as to' his acquaintance with Joseph P. Ames, the defendants’ grantor, and conversations had with him, his conduct, etc., and that from his conduct and conversations, as detailed by the witness, he believed that his mind was weak. He also testified that his reason for thinking his mind was weak was by his talk; that, “if you talked to him about any little thing, he would probably say a word or two, and then his mind would wander off on to something else.” The^ plaintiff asked this witness these questions: “Was he able to converse intelligently ’on any particular subject for any length of time?” “You may state in what manner Mr. Ames carried on conversations with you while you were there.” Objections were interposed and the ansAvers to the questions excluded. We do not think the exclusion of these answers, or either of them, constitutes reversible error. The first would have been a mere opinion as to the ability of the party to converse intelligently. The witness gave the conversations and described the conduct of Mr. Ames, and it was for the court to draw the inferences therefrom as to his ability to converse intelligently. The second was substantially answered by the witness before he left the stand.
The deposition of a physician, who, in his professional capacity, had treated Joseph P. Ames, was taken. His evidence shows that he had prescribed for him, and that his prescription was in writing. He was then asked: “Will you now state what that prescription was?” Objections were interposed and the evidence excluded, and its exclusion is now assigned as error. We have not been shown, nor are we able to discover, the materiality of the
It is urged that the only reasonable inference from the evidence is that Joseph P. Ames was mentally incompetent to execute the conveyance. We do not think so. The evidence shows that, at the date of the conveyance, he was about 65 years old and in failing health. That his mental faculties had been somewhat weakened may be- conceded, but the evidence falls far short of showing that they were impaired to the extent that he did not understand in a reasonable manner the nature and effect of the conveyance, or that he did not execute it understanding^ and with full knowledge of its purpose and effect.
Considerable stress is laid on the opinion of an expert witness to the effect that, on the facts assumed in the hypothetical question, the patient was insane. But an analysis of his testimony shows that one of the facts assumed by him, and upon which he based his opinion, was that the patient was mentally incompetent to transact his ordinary business. It is obvious that this renders the opinion valueless, because it is an assumption of the very point in dispute. The opinion of the expert reduced to its simplest form amounts to this, that if the patient was
We are satisfied from a careful study of the evidence that, even were the case here on appeal and for trial de novo, we should be compelled to reach the same conclusion as that reached by the trial court. We discover no reversible error in the record, and therefore recommend that the decree be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is
• Affirmed.