84 W. Va. 473 | W. Va. | 1919
Defendant William Davis has appealed from two decrees of the circuit court of Marshall county, pronounced on the
In the spring of 1913 Bole married a woman much older than himself, by the name of Stella Patterson, and began housekeeping with her on his little farm. Soon thereafter he separated from her, charging her with adultery; and, being well acquainted with defendant Davis, he disclosed to him his domestic troubles. Thereupon Davis advised him he had good grounds for a divorce from Ms wife. Bole
Plaintiff prays that the deed be canceled on two grounds: First, that his ward was non compos mentis and incapable of understanding such a transaction; and, second, that defendant exerted an undue influence over his ward, and induced' him to make the deed by fraudulent and improper means. The depositions in the case make a voluminous record, over seven hundred pages. It is an unnecessary task which can serve no useful purpose to review in this opinion the conflicting! testimony. Many witnesses have testified respecting Bole’s mental capacity, and their opinions are diametrically opposed to one another. Two or three physicians and very many lay witnesses for the plaintiff swear, in their opinions, that he was not mentally capable of transacting business. But the doctors who so testified made no particular examination of him, and only a few plaintiff’s other witnesses had had personal transactions or dealings with him, and their opinions were based on general impressions received from conversations with the boy and from neighborhood rumors. On the other, hand, many witnesses for de
If Bole was compos mentís, and we think the court below was right in concluding that he was, it is immaterial whether the money advanced was for necessaries or not, or whether it was advanced before or after he became of age. Because, after coming of age, he could validate his contracts^ made during infancy, and his acknowledgment of the money received during infancy constituted a valuable consideration ■ for the conveyance, in the absence of fraud. An infant’s •contracts are not void, but voidable at his election. Hobbs v. Hinton Foundry Co., 74 W. Va. 443, and Blake v. Hollandsworth, 71 W. Va. 387.
Bole tries to make it appear that Davis continually advanced him money to enable him to have a good time in ■order that he might thereby subject him to his wily influence
It is not explained why his wife was not examined as a witness, hut it appears from the testimony of J. E. Palmer, who knew Bole well, that in a conversation with him about selling his farm, witness told him when he got his money it wouldn’t last long, that he wouldn’t work, and asked him, when he ran out of money, what he was going to do, and Bole replied, that he would get Stell, (meaning his wife), "to get the place back again and sell it again.” In fairness to Bole’s committee, it is proper to say he knew nothing about his ward’s disposition and habits, and only consented to act as his committee at the request of the attorneys who appeared for his wife. Bole is shown by the record to be a lazy, spendthrift, wholly untrustworthy and unreliable. He appears to be a moral degenerate, but he is certainly not proven to be an imbecile or lacking in mentality. Considering the time he went to school he seems to have made fair progress; he says he studied geography, history and reading in the fifth reader, and says he had taken* up literature. His spelling is -bad and he fails to observe' the rules of punctuation, but he writes and expresses him-, self fairly well. Some of the 'witnesses in describing hisi mental condition say it is a ease of arrested development, that he is like a child. That his mind lacks proper education and training cannot be doubted, but he has a great amount of cunning, and has deceived many persons into lending him money and credit. Having determined that Bole was not an imbecile, or a lunatic, but that he was capable of appreciating the effect of what he did, we hardly see how the learned judge could reach the conclusion that he was duped and imposed on by Davis, and was unduly influenced to convey his land to him. Bole was shrewd enough to try to make it appear, by his own testimony, that he was under the influence and domination of Davis. He swears Davis would give him money, beer and whiskey and would encourage him to associate with lewd women, and, as he says, "have a good time.” Davis denies this, and he is supported in his denial by Bole’s letters to him. In those letters, importuning
That the deed was executed on the very day Bole be--<eame of age, casts no suspicion on the good faith of Davis, in view of the circumstances. Bole owed other people who were anxious to secure their money, and he knew that, if they sued him, his' land would be sold and his basis of credit for the future would be gone, whereas if he repaid Davis in full the money advanced during his minority, he would) receive more from him in the future, until the whole consideration for' the land was paid. Davis did not finish paying the purchase price until sometime in the spring of 1914.
There is much conflict in the evidence respecting the actual value of the land. Some of the witnesses value it as high as $2,000.00 or $2,500.00. Their opinions, however, are based tapón the assumption that there are twenty acres of coal yet unsold. This assumption appears to be erroneous. Other ■witnesses value it at $800.00 to $1,000.00, and some of them as high as $1,200. Considering the location, rough and steep character and grown up condition of the land, the facts that ■there are no buildings of any value on it, that the fences are nearly gone, that the oil and gas lease is liable to be surrend
Davis swears that, on the 6th of March, 1914, he paid Bole $75.00, the balance of the $900.00, and took from him a receipt in full, and produced the receipt. Although Bole’s . recollection appears to be certain and clear as to most things, he professes not to recollect that transaction; he simply says: “No sir, I forget all about that day, I don’t remember any conversation on that day at all, — it is a blank. ’ ’ But he does not deny his signature to the receipt, and when asked if it was, replied, “it might be.”
Notwithstanding the burden of proof must be borne by the plaintiff, the decided preponderance of the evidence is in favor of the defendant, which calls for a reversal of the two decrees of June 20, 1916, and February 28, 1917, respectively, and the dismissal of plaintiff V bill, and it will be so ordered.
ON REHEARING
After listening to exhaustive oral arguments by counsel for the respective parties and reading their briefs, and again carefully considering the evidence taken to sustain the contentions that plaintiff’s ward was incapable of transacting business and was unduly influenced and defrauded of his property by the defendant, the court is satisfied that these charges are not borne out by the record. That Bole was not ■an imbecile or non compos mentis, but was able to deceive a number of other persons besides Davis and thereby secure credit, is abundantly proven. He was not so mentally defective as not to be able to transact business for himself. That he was morally crooked and irresponsible, and had little regard for the truth, when a falsehood would serve
The contention of plaintiff’s counsel that Davis deliberately set about to gain Bole’s confidence by advancing him small sums of money and then to defraud him out of his land is not proven. Bole testified in his own behalf, and the intelligence revealed by his answers to questions shows that he had legal capacity. That his business judgment was not good may be true, but many persons, who could not even be suspected of want of legal capacity, are liable to the same criticism.
Davis swears he kept an accurate account of the money advanced to Bole and presented an itemized account of the same, showing that he has paid him $1,085.00, $185.00 more than the price of the land. On the other hand, Bole admits he kept no account, does not know how much money he received and denies some of Davis’ charges. But every one of them is proven either by Davis’ checks to Bole, endorsed by the latter, or by receipts signed by Bole. In addition to the many receipts for small amounts, given at the-time the money was advanced, Bole signed a receipt for $900.00, on March 6, 1914, stating that it was in full of the price for the land.
Davis presents a receipt for $150.00, advanced to Bole in-May, 1913, which he says was money he let Bole have to buy stock for his farm at the time Bole married and went to housekeeping. Counsel for plaintiff contend that Bole’s signature to that receipt is a forgery, and had the original record brought up in order to satisfy this court that their contention was right. We have carefully examined this receipt and Bole’s signature thereto, compared it with his signature endorsed on checks payable to him, the genuineness of which is admitted, and are satisfied that his signature to the receipt in question is his genuine signature.
That defendant may not have kept his account in chronological order in his book of original entry is of little signi-
Reversed, and bill dismissed.