70 P. 1039 | Or. | 1902
delivered the opinion.
This is a suit to set aside a deed to certain real property in Jackson County, Oregon, executed February 7,1900, to the defendant Ralph Dean, by his mother, Anna Dean; who died intestate in said county October 24th of that year, leaving as her heirs the plaintiffs and said defendant. It is alleged in the complaint, in effect, that at the time the deed was made Mrs. Dean was dangerously sick, rendering her infirm in mind, and unable to resist the undue influence of her son Ralph and his wife, the defendant Olive Dean, who, taking advantage of her incapacity, unlawfully induced her to make said deed in fraud of the rights of plaintiffs. The answer, after denying the material allegations of the complaint, avers that in February, 1882, Ralph, having attained his majority, entered into a contract with his mother, then a widow; whereby he agreed to live with, care for, and assist her in managing her property during her natural life, in consideration of which she agreed to convey the greater part of her real estate to him; and that he had faithfully kept his part of the agreement, to the satisfaction of his mother, who executed to him a deed of the premises. The reply having put in issue the allegations of new matter in the answer, a trial was had, resulting in a decree dismissing the suit, and plaintiffs appeal.
An examination of the testimony shows that Anna Dean and her husband, N. C. Dean, took up a donation land claim in said county, the north half of which was granted to him and the south half to her. Mr. Dean died intestate June 4,1876, seized of his part of said claim and of other real property, all of which was mortgaged to secure the sum of $2,800. He left surviving him, besides his wife, his sons, Brad W., Robert H., and Ralph F. Dean, and his daughters, Sherry, now Mrs. Ro
Much testimony was taken concerning Mrs. Dean’s alleged purpose and agreement to convey her property 'in the manner indicated, and her mental condition at the time she made the deed, a summary of which shows that for more than eighteen years prior thereto her son Ralph lived with her, after attaining his majority, and that she told many persons she intended to convey to him her old home place; but the number of acres
It is impossible to reconcile the conflicting opinions of the witnesses called to testify concerning Mrs. Dean’s mental condition ■ on February 7, 1900, when she executed the deed to Ralph, except that there is little controversy in respect to her memory, nearly all the witnesses agreeing that she could not remember the things that were daily transpiring, and would repeat her inquiries in relation thereto at frequent intervals, but as to those events that occurred when she first settled on her donation land claim she remembered the entire particulars. As tending to show that she never meant to convey all her property in the manner in which it was disposed of, her son Brad testifies that when he returned to her place at the close-of his term of office she permitted him to move an old house upon her land,, agreeing to convey to him a part thereof; and, to show that Ralph made.no claim to the premises which he improved, he testifies that this brother made no objection thereto. Mrs. Elizabeth Kinney (defendants’ witness) testified that
"We believe the foregoing is a fair statement of the testimony, which has been examined with much care, and the question to be determined from its consideration is whether Anna Dean, at the time she executed the conveyance to her son, possessed sufficient intelligence to understand fully the nature and effect of the transaction. It clearly appears that she was at all times able to converse rationally upon all subjects, and though, in consequence of her defective hearing, it was difficult for strangers to make her understand all that was said, she was a great reader, and took delight in perusing the newspapers. She was a pioneer of Southern Oregon, and retained to the last a vivid recollection of the hardships that the early settlers of this state endured, and cherished the friendship that common privation and danger seemed to enkindle in the minds of these sturdy people. She could not remember, however, the events that transpired in the last year of her life; her failure in this respect becoming noticeable just before her illness in October, 1899. A defect of memory is probably the first evidence of an impairment of the mental faculties. Impressions made upon the mind are deep and lasting or shallow and transitory, just in proportion to the degree of attention which a
In Carnagie v. Diven, 31 Or. 366 (49 Pac. 891), a grantor of real property, eighty-three years old, having died the next day after executing the deed thereof, his heirs instituted a suit to set aside the conveyance, alleging in the complaint “that prior to the time of his death and immediately before said time” he was feeble in body and mind, occasioned by his extreme age, and unable intelligently to enter into a contract, or to perform