75 P. 760 | Idaho | 1904
This is an appeal from the district court of Bingham county; defendant had judgment in the lower' court; from the whole of the judgment the appeal is taken. Plaintiff, as the administrator of the estate of John Garrett, deceased, commenced his action to cancel and set aside a certain mortgage, dated the sixth day of November, 1895, and a deed from said Garrett to John E. Kirkpatrick, dated the tenth day of November, 1898, for the reason and upon the grounds that grantor, John Garrett, was incompetent to execute and deliver the said mortgage and deed. John Garrett was the grandfather of defendant, the grantee. A jury was selected and forty-three questions were submitted to them to be answered and returned to the court, and much to their credit, they waded through the long list and answered each one of them. Thereafter, and after argument of counsel, the court adopted the findings of the jury with certain amendments, which améndments counsel for appellant claim were not warranted by the evidence.
Question 26, as submitted to the jury, is as follows: “Did John Garrett, on the ninth and tenth days of November, 1898, when he directed John Montgomery, his attorney in fact, to make the deed in question to John E. Kirkpatrick, know what, he was doing?” Answer: “Not fully.”
Question 31 follows: “Was John Garrett on the tenth day of November, 1898, possessed of sufficient mental capacity to understand an ordinary business transaction?” Answer: “Not fully.”
Question 41: “Was he possessed of sufficient mental capacity to understand the nature of the mortgage and the effect of its execution and delivery?” Answer: “Not fully.”
Twenty-eight errors are assigned by counsel for appellant, nearly all based on the theory that the evidence, taken as a whole, does not warrant the findings of the court that deceased, John Garrett, was mentally capable of executing and delivering the mortgage and deed to respondent. It is impossible to fully comprehend the issues involved and the facts upon which a judgment in this case was rendered without fully setting out the findings of the court which were the findings of the jury with the amendments heretofore referred to, which are as follows :
“Question 1. On the tenth day of November, 1898, at the time the deed in question was made, what was the age of John Garrett? Answer. Over 80 years of age. Q. 2. What relationship existed between John Garrett and the defendant? A. Grandfather to defendant. Q. 3. During the last five or six years of his life was John Garrett addicted to the use of intoxicating liquors, and to what extent? A. Yes, to excess. Q. 4. Was John Garrett during the last six or eight years of his life a firm believer in the doctrine of spiritualism? A. Yes. Q. 5. Did John- Garrett during the last five or six years of his life suffer with hallucinations or delusions, i. e., did he believe that he saw and heard, entertained and enjoyed the company of persons who were not in fact physically present, and who did not, in fact, exist physically? A. Yes. Q. 6. Was John Garrett in his later years filthy or ordinarily cleanly in his person? A. Filthy. Q. 7. Was he filthy, or ordinarily cleanly in his household? A. Filthy. Q. 8. Did John Garrett in the last five or six years of his -life accept the advice and follow the directions of supposed spirits against those of a practical surveyor or engineer, relating to the location of water ditches? A. Yes. Q. 9. Did John Garrett in the last five or six years of his life accept the advice and follow the directions of supposed spirits concerning the practical business af
Many reasons are assigned why deceased, Garrett, was mentally incapacitated to make the convej’-ances in controversy. Old age; his firm belief in spiritualism; excessive use of intoxicating liquors; the loss of his wife a few years before the execution of the conveyances — are all urged as reasons for unbalancing his mind and rendering him incapable of knowing and fully understanding the effect of the conveyances. A great volume of evidence is before us of persons who were well acquainted with deceased for a number of years before his death. We have the evidence of Dr. J. W. Givens, superintendent of the asylum for the insane at Blackfoot, as an expert on the subject of insanity. Then we have the evidence of those who were acquainted with his daily habits. We do not feel justified in referring to this evidence very extensively in this opinion, for the reason of the well-established rule that when a case comes to this court on appeal from a judgment, based upon disputed facts in the lower court either where the trial was with or without a jury, the judgment will be affirmed. As has been so often said by the courts of last resort, the trial court has many opportunities to see and know things connected with the trial that cannot be brought to this court in the record; they have the' opportunity of observing the manner and conduct of the witnesses and their means of information; all evidence looks alike on paper and then, under the rules, we get it in an abbreviated form. The district courts are the trial courts for ac
This may be considered evidence of insanity by some and by others as a high order of intelligence and advancement in religion or science. It is shown that he was an educated man, and read other books than those treating on the subject of spiritualism — in fact, was what is termed a great reader — did not ignore politics, and was informed on and ready to discuss the current events of the times. It is also shown by the evidence of Mr. Gagon, who took his acknowledgment to the mortgage, that he believed him capable of knowing and fully understanding the nature of the transaction. Also by the evidence of Mr. Montgomery, who was his attorney in fact at the time of the execution of the deed, that he believed he fully understood the transaction; and by the evidence of Mr. George L. Wall, who took his acknowledgment, to the power of attorney appointing Norman Jones his attorney in fact, Mr. Wall says: “I explained to him what it was and he said he knew what it was, a power of attorney firing J.-S.-and giving Norman Jones charge of his affairs, or words to that effect.” Frank W. Beane testifies to business transactions and conversa
It will be observed that his answers were based upon the testimony of other witnesses and hypothetical questions, and not upon any knowledge or experience with the deceased. We have said the evidence on the material issues involved in this case was very conflicting. We find it so much so that we do not feel that we would be justified in saying that the findings of the court should be set aside and a new trial granted on this account.
Counsel for appellant in the oral argument relied on Allore v. Jewell, 94 U. S. 506, 24 L. ed. 260. This was a ease where an old, feeble woman conveyed her property to a stranger on certain conditions. of payment, and before any payments of consequence were made she died. It was shown that when she made and delivered the deed no one was present except the grantee, his agent and his attorney. The property was worth at the time of the conveyance between $6,000 and $8,000. It is said in this case: “In November, 1863, the defendant obtained from her a conveyance of this property. A copy of the conveyance is set forth in the bill. It contains covenants of seisin and warranty by the grantor, and immediately following them an agreement by the defendant to pay her $250 upon the delivery of the instrument; an annuity of $500; all her physicians’ bills during her life; the taxes on the property for that year, and all subsequent taxes during her life; also that she should have the use and occupation of the house until the spring of 1864, or that he would pay the rent of such other
The opinion then discusses the evidence as to the habits of deceased, certainly showing a much worse condition of mind than is shown of the deceased in the case at bar. It was not shown that the defendant — respondent—ever attempted to exert undue influence over the deceased, Garrett, or asked him to make the deed. He says, and it is not contradicted, that he wanted his money due him on the mortgage, but that his grandfather insisted on giving him the deed. It is shown that Mr. Montgomery, who was attorney in fact for deceased at the time of the execution of the deed, refused to make it when he was first requested to do so by the deceased, and on the next day deceased came back and insisted that the deed should be made, and when asked for his reasons, said they had been good to him — evidently meaning the Kirkpatrick family. From this evidence it is shown, not only that deceased knew just what he wanted done, but when asked gave his reasons for the course he was taking. Many authorities are cited by counsel for appellants to the effect that whenever there is a great weakness of mind arising from age, sickness or other cause, in a person executing a conveyance of land, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper showing and seasonable application of the injured party, or his representatives or heirs, annul and set the conveyance aside. We do not think this rule can be questioned, but under the facts as established in this case and the findings of the court largely depending on the findings of the jury, it does not come within this rule.
Counsel for respondent rely on the case of Kelly v. Perrault, 5 Idaho, 221, 48 Pac. 45. This opinion was written by Mr. Justice Quarles, concurred in by all the members of the court; it says: "There is absolutely no evidence in the record before us which shows that at the time the deed in question was executed the grantor was under undue influence, but, on the other hand, the evidence of the subscribing witnesses to the deed,
It is urged by counsel for appellant that if the court had adopted the findings of the jury, as they were returned, the judgment would have been in favor of appellant. The court had the right to adopt all the findings of the jury or any portion of them, or reject any or all of them and prepare its findings independent of theirs, and there was no error in the amendments to the findings of the jury complained of.
We find no error in the record, and the judgment of the trial court is affirmed. Costs are awarded to the respondent.