147 Mo. 587 | Mo. | 1899
— The object of this suit is to recover possession of a tract of land now in the possession of defendant. Both parties claim title under William Cutts, deceased, tbe plaintiffs as his only children and heirs at law, the defendant by deed directly from him.
The petition is in two counts, one in equity to set aside the deed from Outts to defendant, upon the ground that it was obtained by fraud and undue influence, and the other in ejectment.
The trial was before the court, a jury being waived as to the count in ejectment.' There was judgment for defendant upon both counts. The plaintiffs then filed motion for new trial, which being overruled they appeal.
In July, 1895, defendant rented from William Outts a small farm in Green county, being the same land involved in this litigation. Outts had a small house built on the farm for defendant to live in. At that time Cutts and his wife, who was then living, were very old, he being over eighty years of age, and she and their son George Outts being feeble minded.
William Outts had proposed to defendant that if he would take care of him, his feeble-minded wife and son George, as long as they lived, he would give him the farm in question, which defendant finally agreed to do, and on or about the twentieth day of October, 1895, William Cutts becoming very ill the defendant went for a physician, who told him that Mr. Outts was not liable to live but a few days. On the next day defendant procured the services of a lawyer and a justice of the peace, and went to the house of Mr. Cutts and from there took him to the house of defendant, where he executed a deed to defendant for the land. They then returned to the house of Cutts when Mrs. Outts signed and acknowledged the deed. She was then very ill and died within five days thereafter.
There were apparently some irregularities in this deed,
The consideration expressed in the deed is $1, care and support of the grantor during his natural life, and an agreement upon the part of the grantee, Charles C. Young, after the death of "William Cutts, to apply the rents or their equivalent to the support of his son George T. Cutts during his natural life.
William Cutts was prior to his last sickness-a man of more than ordinary intelligence. He was and for some time had been justice of the peace in the county where he resided. As one of the plaintiffs, Russell Cutts, puts it, “up to 1896, or 1897, he was vigorous for an old man.” His decline physically and mentally was about as usual in such cases.
J". H. Earnest, a witness for plaintiffs, testified: I knew William Cutts ever since he lived there up to his death, 6 or 7 years, was at his house in his last illness. He was taken sick on Saturday or Sunday, I think, bad, and sent for the doctor on Sunday, and he died the next Thursday night a week — • was there on Saturday before he died. When I first went he didn’t recognize me. Charley Young told him who I was. I don’t remember what he said, he made some excuse some way. It would be hard for me to say whether he was conscious or unconscious; I spoke to him and asked him how he was, and he went on talking with me, but didn’t look just right; and Charley Young told him who I was, and he talked on with me an hour or two. I had been his neighbor ever since he moved there, I can’t tell how long it was; our farms joined. I saw him frequently and knew him intimately when he was in fair health, he never failed to recognize me-before. After I got to talking with him he talked like he knew me and everything, all'right. As compared with the old gentleman’s mind as displayed when I first became
Mrs. Sarah Earnest, another witness, says: Erom the time I first knew the old gentleman Cutts, up on to the time he was taken sick, the winter before, he always seemed to be a strongminded old man. He didn’t recognize me on one occasion ; the morning his wife was buried I went in and took him a glass of jelly and a can of fruit, and he didn’t recognize me; said he didn’t recognize me; said he didn’t know who I was. And Mr. Hardman told him who I was. I put it in his hand and then he said he didn’t know who I was. He had been well acquainted with me for 7 or 8 years, I frequently met him and conversed with him. On cross-examination she said: I handed him the jelly and asked him if he would like to have something to eat and he said he would. He said, “I don’t know you,” and he made some answer that I didn’t understand. Mr. Hardman told him who I was, he told him who I was before Mr. Cutts said anything, and then he made some answer, but I didn’t understand what it was. I thought about the old man being peculiar before these people got to talking about this case. I thought about it about the time he died.
Donely, another witness, said: The first five or six years I was acquainted with Mr. Cutts, he was a man of good sense. I suppose that during the last year of his life, his mental con
H. E. ITardman, another witness who knew William Outts well and visited him a few times during his last illness, stated: “During these visits Mr. Cutts generally recognized me, perhaps, once or twice he didn’t, when I first spoke to him; there was one day, on Tuesday, the day his wife was a corpse, I think he lay with his eyes closed a good deal of the time. On Tuesday when he failed to recognize me, he wasn’t complaining quite as much as he had been before. He was in bed then.” Q. “Was he in a condition at that time, from what you had seen from this Thursday and from then up to Tuesday, to transact business intelligently?” A. “No, he was not in much condition for anything; he seemed to be in his right mind as far as I heard. I couldn’t tell whether his mind was impaired or weakened, or not.” On cross-examination the witness stated: In the conversation I had with him, when he roused up, he seemed to understand what he was talking about. When I went in, I think he was awake, but had his eyes closed, and didn’t notice. I went in and spoke to him, and at that time he called me Mr. Young, or he just thought it was Mr. Young, but he recognized me right away. He never told me anything about what disposition he expected to make of his property. Never told me anything about giving Russell Outts any money, or letting him have any money to invest and not getting it back.
Albert Hardman, another witness who was present at the time of the execution of the last deed by William Outts, after stating that Hahn, the justice of the peace, and Charles Young, Sr., and Charles Young, Jr., were there, proceeded: Hahn read the deed and they moved a small stand over in
By the Court: Q. “He just read it over and the old man was about as smart as any of you about conveyances ?” A. “Yes, sir, I expect so.”
This was substantially all of the evidence adduced by plaintiffs with respect to the condition of the mind of William Cutts at the time of the execution by him of the two deeds to the defendant Young.
On the part of the defendant, Gilbert R. Watson, a witness who had known William Cutts for several years, stated: He was justice of the peace at the time of his death, by appointment; there was but one justice who had been qualified from the previous election. I read the deed that was signed by William Cutts qnd his wife, to Charley Young. On Saturday evening, about the 19th of October, Charley Young came to my place and we had a conversation. That was on Saturday before the deed was written on Monday following. On Monday morning, the 21st, I went to Charles Young’s house, on the Cutts place, Mr. Cutts came there; it was about eight o’clock when I got there. Charles Young, when I got to the place, drove over to old man Cutts’s place in a wagon, and they came directly in the wagon, and when he came into the house, we just passed a few words in conversation, and he said, this business he wanted fixed up. Mr. Cutts said that. This business he wanted fixed up, or something like this. He wanted what property he had to support him and his wife during their lives, and then after they were gone he wanted George to have some benefit of it, and that he believed Charley Young was the man to do this; and I asked him what he wanted George to have. Well, he said, that he didn’t want him to have anything, that he wasn’t competent to take care of it. Charley Young asked him to write the deed, or to go over there. He employed me to write the deed and paid me for it. The old man said that he wanted it so secured to
W. E. Hahn, a witness, says; I am justice of the peace. I was present at the time William Cutts and his wife signed the deed, on or about October 1st, 1895, I saw William Outts sign the deed, and saw Mrs. Cutts make her mark, I took their acknowledgment to that deed. I was also present when William Cutts signed the deed on the 30th day of October, 1895. I saw him sign his name to it, and I took his acknowledgment to it. I compared the first deed with the last; the difference in the date;one was dated the 21st day of October,the last one the 30th day of October; and in the second deed the name of the wife was left out and the word widower inserted instead, and the singular was used instead of the plural throiighout the deed; and the clause wherein Charles Young agreed to give the rent to George Cutts during his natural life, came in just after the description in the deed. This was the substance of the difference. I don’t remember how the first deed was signed; when my attention was called to it, the name of William Outts was signed to the deed with a scratch after the first letter, Wm.; it was scratched out and William was written there over something that had been scratched, I don’t know
After stating on cross-examination that Mr. Cutts was lying down when he went to take his acknowledgment to the last deed, and that old man Young and Charley went and raised him up in bed or assisted him to get up, witness said: They raised him up and I"set the table out before him to sign the deed. He was a little bit nervous, he didn’t have his glasses. He was not more weak and nervous than any man of his age and in his condition. He was feeble, of course, tolerably sick. I didn’t notice that he was very nervous. Q. “Did the first deed contain the clause, ‘for and in consideration of one dollar and care and support during his natural life ?’ A. “No, it contained ‘one dollar, care and support during our natural life.’ ” The first deed was written on a blank and I don’t remember how it was written, but just like that deed, except changes in the name. I can’t write a deed out in full without something to go by. It Avas Avritten on legal cap, but it AA^as Avritten by a blank just like that, by Watson, he had that blank to copy from. One just like it; one printed by Mat Sims here in the city. In the first deed, this provision here for George Cutts is just as it is in this deed, is the Avay I remember it. I remember it being like it except at a different place in the deed; I have explained that before. Q. “As a matter of fact, didn’t you as acknowledging justice, explain to the old man that this was identically the same, and just a copy of the 'other?” A. “No, sir.” Q. “Nobody else explained it to him there?” A. “No, I read it over myself twice, made no explanation; none necessary. The old man tore the other deed in two tAvo or three times. Charley Young took that deed out of his pocket and gave it to the old man Cutts, and he tore it up in his pres-once, and the defendant made no objection to his tearing it up. I don’t remember the old man giving the torn up deed to old
Other witnesses testified upon either side of the case, but not materially different from what had been set forth.
It is well settled that neither old age, disease, mental weakness, inadequacy of consideration nor confidential relations are sufficient of themselves to justify a court of equity in setting aside a contract entered into for a valuable consideration, but that each and every one of them is an important factor to be taken into consideration in passing upon the question as to whether or not such a contract was obtained by fraud and undue influence, is equally as well settled. [Dickson v. Kempinsky, 96 Mo. 252, and authorities cited.]
That plaintiffs signally failed to prove that their father-, William Cutts, was incapable at the time of its execution of making the deed sought to be set aside in this proceeding, and that he did not then know perfectly well what he was doing, and its nature, and effect, is beyond any and all question. Even the weight of the testimony adduced by plaintiffs shows to the contrary, and that the grantor was- of more than ordidinary intelligence, and in the possession of his mental faculties at the time of the execution of both deeds. When he signed and acknowledged the deed in contest he wanted to know if the first one had been put upon record, and when he was informed that it had not been, he replied that “it was rather awkward to go on record concerning him, and he did not want anything awkward to go on record concerning him, he wanted it to be right and correct,” and when handed that deed took it and tore it up. Thus clearly demonstrating ’ that he was familiar with such instruments, that they were required to be recorded, and the effect of both their execution and recording. Nor was there any evidence whatever that the deed was obtained by fraud or undue influence.
The consideration for the deed is the only thing we think
There is nothing in the record which we think shows that William Outts was incapable of making the deed in question,
We therefore affirm tbe judgment.