5 W. Va. 168 | W. Va. | 1872
The object of the bill filed by the appellees against the appellant and others, in the circuit court of Wood county, was to impeach and set aside, as fraudulent, the contract entered into between the appellant, James J. Deem, and his father, Philip Deem, now deceased, on the 29th of December, 1863, for the sale and purchase of the real estate of the latter, as well as the deed from the latter to the former, made in pursuance of said contract on the 20th day of February,. 1864. The appellant resists the bill, and claims that the contract is a just and valid one, was fairly and honestly entered into, without any fraud or imposition on 'his part, and was founded on adequate consideration. And also insists that the' deed is, in like manner, free from objection, and valid. First as to the deed:
The original deed, upon a writ of certiorari, was brought, before us for our personal examination. From an inspection of it, as well as from the testimony in the cause, it appears that extensive erasures and material interpolations were made in the deed after it had been acknowledged by the grantor, Philip Deem. It further appears that these erasures and insertions were made by the scrivener who drew the deed, in the presence, and at the instance of. the appellant,
Second: How stands the case upon the contract ?
It was earnestly maintained by the counsel for the appellant, that the contract, at least, was free from objection, and ought to be enforced in a court of equity as against the heirs of Philip Deem. There is a great deal of conflicting testimony in the record, touching the capacity or competency of said Deem to make such contract or to execute the deed. It is shown that at the date of the contract, Philip Deem was about seventy-nine years of age, was diseased, and both his physical and mental powers thereby impaired, and in the opinion of many of the witnesses, he had no legal capacity to make such a contract; and instances of his sayings and conduct about the time are given by them, which would seem to be wholly incompatible with a sane mind or legal competency to make a contract. But the weight of the whole testimony on this point, I think, preponderates in favor of the appellant, and if the case is to be determined alone on the question of the capacity of said Deem to make a contract, I would think the decree rendered erroneous.
It is charged in the bill, however, and was insisted on in the argument, that the contract in question was not voluntary and binding on the part of Philip Deem, but was procured by James J. Deem by means of an improper influence exercised over the mind of the former. While there is no positive evidence found in the record to establish the charge of undue influence on the part of James J. Deem, and while, if the case was to turn solely on this question, the evidence might be insufficient to satisfactorily prove such charge, yet, in my judgment, there are facts and circumstances surrounding the case which are well calculated to awaken grave suspicion as to the fairness of the contract, and the means by which it was procured. In considering the question of undue influ:
The facts and circumstances, in my view, clearly tend in this direction. Up to the time that James J. Deem moved into the house with his father, it does not appear that he had ever expressed any dissatisfaction with any of his other children or grandchildren, or indicated any disposition or purpose to make any distinction or preference between them in the disposition of his estate. But on the contrary, it is shown by the testimony that he had declared that he never would do so, or convey or part with any of his estate during his life; and that he was incompetent to make as good a disposition of his property as the lato would make, &c. Now, it is a pregnant-/aci that not very long after the son had so removed in the house with him, and took charge of him and his property, a radical change was wrought in the old man’s mind, in respect to his property and his other children and heirs, and he has done precisely what he had so often and so positively declared and vowed he never would do. What superinduced this great change in his mind, can only be conjectured. But it is clear that no actual necessity existed fo:q such a disposition of his property, in order to his comfortable support; and that it was repugnant to his natural feelings arid purposes, as declared before the son occupied such peculiar relations to him. The facts proven by Rutherford, the justice who took the acknowledgment of Philip Deem to the deed in question, as to what occurred at the time, seem to me to be equally suggestive. He says he was sent for “ to fix up some papers,” as he was informed by the son of James J. Deem, who came after him, at the instance of Ms father ; that when he arrived at the house of Philip Deem, he found C. T„ Lewis, the scrivener who wrote the contract and deed, and James J. Deem present, and the former said that uwe have
It seems to me, if such a case should fail to shock the senses ■and to produce exclamations of surprise and reprobation in indifferent persons, it would be difficult to suggest one that could produce such a result. .Upon the whole case, therefore, I must concur in the opinion of the learned judge of the circuit court, in holding that such a case as the one before us ought not to be approbated or permitted to stand in a court of conscience.
The decree complained of must be affirmed, with costs and .damages.
Decree affirmed.