15 Kan. 323 | Kan. | 1875
This was an action brought by Robert Eults against Ephraim Bainter and George Barnett, for the purpose of rescinding, setting aside, and canceling, on the ground of fraud, a certain executed contract, with certain deeds of conveyance, and other matters incidental thereto, whereby Eults exchanged some real estate and personal property belonging to him for some real estate belonging to Bainter. The principal questions discussed by plaintiffs in error are so obscurely and insufficiently presented by the record brought to this court that we think we can hardly consider them at all. The court below finds that the plaintiff below was at the time the alleged fraudulent transaction occurred, “ sixty-nine years of age, illiterate, infirm from age and physical injuries, weak in mind, and incapable of managing his own affairs.” Now how weak in mind was the plaintiff? Was he weak to idiocy, or only slightly weak? We cannot tell from the record. He was “incapable of managing .his own affairs,” but whether from age, illiteracy, physical infirmity, or mental imbecility,'or all, we cannot tell. None of the evidence has been brought to this court, and nothing else shows it. Hence we are left to conjectures and presumptions only. Now, as all presumptions must be construed in favor of the correctness of the findings and judgment of the court below, we must presume in support of such judgment that the plaintiff was extremelyiweak in intellect, mentally so weak as to be “incapable of managing his own affairs,” weak even to the very verge of idiocy; for mental weakness would best excuse him. The court below further finds that—
“On the 19th of October 1,871, Bainter and Barnett went to the farm where Fults lived, and contrived and conspired to cheat and defraud the plaintiff and obtain his property to their own gain and advantage, well knowing that plaintiff at that time was not capable of managing his own affairs; and by means of false and fraudulent representations induced him to agree to exchange the farm in the first paragraph herein described, [Eults’s farm,] and to. pay to the said Bainter in*330 addition as boot-money $1,000 in property, live stock, which Bainter was to have the privilege of bidding off at auction while the sale was progressing, and did bid off to the value and amount of $947.
“On the 11th of November 1871, under threats of vexatious litigation, (because of the refusal of plaintiff and his wife to make a deed,) deeds were made and exchanged,” etc. Fults gave a deed for his farm to Bainter, and Bainter gave a deed for his property to Fults.
We think that where two men “contrive and conspire to
Under the facts of this case we are inclined to think that the plaintiff had the right to elect to consider the personal property transferred from himself to Bainter, either as the specific articles transferred, or as the $947 in ~ . , . . . 1 money tor which such articles were taken. Hence; there was no error in rendering judgment against Bainter for that amount of money with interest. No question is made that the articles were not worth the money, and they were taken in lieu of the money.
The judgment of the court below will be reversed as to Barnett. And it will be modified as to Bainter as follows: Bainter shall within some reasonable time to be fixed by the court below, pay to said Eults said $947, and interest, and shall convey to Fults by a good and sufficient deed, all the said real estate heretofore conveyed by Fults to Bainter, but upon this condition only, that Fults shall first convey to Bainter, by a good and sufficient deed all the said real estate conveyed by Bainter to Fults. In all other respects the judgment of the court below will be affirmed. This case will be remanded to the court below for further proceedings in accordance with the views herein expressed.