141 N.E. 812 | Ind. Ct. App. | 1923
Lead Opinion
This is the second appeal of this case, which is an action to quiet title, and involves questions of undue influence and of the soundness of mind of Sarah Kauffman, the grantor in the deed challenged. The opinion in the first appeal is reported in
"This agreement made by and between Sarah Kauffman, first party, and James M. Gwinn, second party. WITNESS, That said first party hereby rents unto said second party, the following described real estate, situated in Hamilton county and State of Indiana, to-wit: * * * for and during her natural life time, at and for two hundred and sixty dollars ($260.00) per year, payable annually. The said first party to have a home and her board free with said second party during said time, said first party to pay all her other expenses, including doctor bills and funeral expenses. The said second party to look after first party's business during said time. The above described real estate having this day been deeded by said first party to said second party, subject to a life estate therein, said second party, or his heirs, if he shall be dead, shall not further share or inherit in said first party's estate. If the said second party shall die before said first party, then this contract shall at the end of the then rental year terminate, without in any way affecting the deed this day made and delivered by said first party to said second party for the above described real estate. The materials and labor for all necessary improvements of the buildings, fences, etc., of said farm to be paid for by the said first party. Witness our hands this 13th day of August, 1921. Sarah Kauffman, J.M. Gwinn."
Appellant Stella is the wife of appellant James M. Gwinn, and he and appellees are the grandchildren of Mrs. Kauffman. The only evidence as to the value of the estate was offered by appellees, by which it appears that the land here involved was worth $100 an acre at the time of the execution of the deed and from $225 to $250 an acre in 1912. The value of Mrs. Kauffman's *269 estate, other than the land involved at the time of the execution of the deed does not appear, but, at the time of her death, her personal estate, aside from her household goods, was worth $15,676.38, and forty acres of land which she owned not here involved was worth $50 an acre at the time of the execution of the deed and $75 to $80 an acre in 1912.
Appellees call attention to the fact that this case has been pending for ten years, and that there have been three trials with a verdict at each trial in favor of appellees, and argue 1. that, therefore, a new trial should not be granted. While appellees do not charge the delay to the fault of any one, and we do not undertake to fix the responsibility therefor, we have no hesitation in saying that it is much to be regretted that there should be such delay in the final determination of the action. This, within itself, however, is not a sufficient reason for refusing to grant a new trial if substantial error is presented. Nor is the fact that there have been three verdicts in favor of appellees a sufficient reason for refusing to grant appellants relief unless the controversy presents only questions of fact for consideration. So long as substantial errors of law occurring at the trial are presented, it is our duty to consider them, and to grant a reversal, if appellants have been prejudiced thereby. The cases cited by appellees do not sustain their contention.
In Savannah R. Co. v. Smith (1890),
In Harrigan v. Savannah R. Co. (1890),
In Van Doren v. Wright (1896),
Appellants complain that the court erred in admitting evidence of the value of the land in controversy at the time of the death of Mrs. Kauffman, while appellees say that evidence to the same point was admitted at the former trial, but that the objection was waived by failure to state any point thereon, and that such question cannot therefore be presented on this appeal. Appellants dispute such condition of the record, and there is nothing in the opinion on the former appeal that enlightens us in this regard. We deem the matter not of enough importance to justify pursuing it further, *271 for the admission of such evidence within itself would not be such error as would justify the reversal of the judgment.
Witness James E. Keck, after testifying to his social and business relations and dealings with Mrs. Kauffman, was asked the following question: "Basing your opinion upon the business dealings with her and your other conversations with her, that you have detailed to the jury, your observations of her manner and demeanor and deportment, as you have described it, state whether or not she was a person of sound mind in your opinion in the year 1901, and thereafter, and particularly on the 13th day of August 1901." There were other questions having substantially the same meaning propounded to other witnesses. There was an objection to each of these questions by appellees upon the ground that each asked for an opinion as to Mrs. Kauffman's sanity at some particular time when they had not seen or conversed with her. These objections were each sustained and appellants excepted respectively to the rulings of the court. Appellees say that a non-expert witness cannot give an opinion that a person whom he saw and found to be sane at one time would remain sane until another particular time, more or less remote, and that such question is for the jury. In support of their contention, they cite Page, Wills § 390. That section states the rule to be that: "An old acquaintance who has had opportunities for knowing testator's mental condition can testify that he believes that testator was sane; but before a non-expert witness, who is not a subscribing witness, can give his opinion that testator was insane, he must give the facts upon which he bases his opinion, which facts must fairly justify the inference of insanity. But if the witness shows that he has not the means of forming an opinion he will not be allowed to state his opinion. Thus, a witness who *272 had not communicated with testator for five years out of the last nine years of his life was not allowed to give his opinion as to the testator's sanity during those nine years." We do not see that this section is helpful to appellees' contention. In the instant case, the witnesses who were asked their opinion of the mental condition of Mrs. Kauffman testified that they had known her for many years prior to making the deed in question and up until the time of her death. They had had business dealings and conversations with her; they had visited with her and she had visited with them in their home. Some of them had borrowed money of her and had testified as to her manner of transacting business, these occasions not being remote from the time of execution of the deed. And in answer to the respective questions propounded to them, in substance as above, appellants offered to prove by such witnesses, if they were permitted to answer, that Mrs. Kauffman was of sound mind.
In Swygart v. Willard (1906),
In Goodwin v. State (1883),
In Johnson, Admr., v. Culver, Admx. (1888),
In Ramseyer, Exr., v. Dennis (1917),
In harmony with the foregoing authorities, we hold that each of these witnesses, after testifying so fully as to their acquaintance with Mrs. Kauffman, their social and business 3. relations with her, and observations of her, was competent to testify in answer to questions propounded to each of them that she was a person of sound mind at the time of the execution of the deed in controversy, and that it was prejudicial error to exclude such testimony.
Appellants propounded to one witness who had testified as to his acquaintance with Mrs. Kauffman the question as to whether he had ever noticed or seen anything strange or unusual in her 4. demeanor. To another, as to whether he had ever noticed any incoherency in her speech, and the further question as to whether he had observed any peculiarity in her manner that called his attention. There was an objection to each of the first two of these questions upon the ground that they called for a conclusion, and to the third there was no reason given for the objection. Appellant offered to prove that the witness would answer each of the questions in the negative. The objection in each instance was sustained. That such questions are competent has been many times decided.
In Carthage Turnpike Co. v. Andrews (1885), *275
The wide scope which may be covered by such evidence is well expressed in 22 C.J. 614, as follows:
"Where the main ingredient in an inference as to the 5. existence of a relevant mental state is the intuitive induction from observed appearances, it *276
is received, upon a statement by the witness of such constituent facts as he is able to detail. Thus a witness may be allowed to state that a person appeared to be, or impressed him as being, affectionate; that one was afraid, frightened, or scared; that a person was agitated, confused, excited, incoherent, nervous, or surprised." On page 600 of the same volume, the author says: "Witnesses have been allowed to state whether persons observed were, at times sufficiently near to be relevant, absent-minded; bright and quick; childish; easily impressed, or influenced; fickle; judicious; lacking in memory; normal; of average intelligence; rational or irrational; sensible; simple; stupid; uncertain; weak; weak-minded; or without memory." Many authorities are cited by the author to sustain his statements of the law, one of which is In re Esterbrook (1910),
Appellant Gwinn was not permitted to answer as to what he did during the time that he lived on the farm in controversy in reference to farming the same; nor to answer as to what, 6-9. in his judgment, it was worth per week for board and to take care of Mrs. Kauffman during the first five years that she made her home with appellants; nor as to what it was worth, after the first five years and up until the last two years of her life, to take care of her; nor what his services, including the services of his wife, on behalf of Mrs. Kauffman, were worth during the last two years of her life. The same witness was not permitted to answer the following question concerning the time when Mrs. Kauffman lived in the home of appellants. "During that time if you saw your wife performing any services for her (Mrs. Kauffman) you may state what she did, what you saw her do?" To each of these questions, appellees interposed an objection that such questions and answers did not tend to prove or disprove any issue in the cause. The examination of appellant James M. Gwinn concerning occurrences before the death of Mrs. Kauffman had been taken out of court by appellees and the examination read in evidence at the trial, and there was, therefore, no question as to his competency to testify. It is appellants' contention that Mrs. Kauffman was of sound mind, and that, even though she was a person of unsound mind at the time she executed the deed, there is no evidence that appellants had any knowledge of such condition of her mind, that there was no evidence of undue influence of Mrs. Kauffman on the part of appellants, that, therefore, there could be no rescission until they had been placed *278
in statu quo, or that an offer had been made by appellees to so place them, and that they were entitled to such evidence for the purpose of sustaining their theory. Appellees say that it was decided on the former appeal of this cause, and is now the law of this case, that the disaffirmance was effectual, and that appellees had the right to sue at law for the recovery of their interest in the land, and they quote to sustain their contention from the former opinion as follows: "There was evidence from which the jury might have found that no consideration was paid therefor, or that the deed was executed under such circumstances that the grantee was not entitled to be placed in statu quo. In either of these events the suggested proof was not required. Viewing the evidence in the light of the imperative rule stated, we cannot say that the court erred in refusing to give the peremptory instruction requested." It will be observed that the foregoing quotation from the former opinion pertained to the refusal of the trial court to give a peremptory instruction which had been tendered by appellants. Appellees say that the evidence upon the last trial was the same as on the former trial, but this court cannot accept this conclusion of appellees and base its ruling upon such statement or conclusion as to the law of the case. Conceding that the jury in the former case might have found that no consideration was paid for the deed, or that the deed was executed under circumstances that would entitle appellees to recover without putting appellants in statu quo, such finding of fact by a former jury could not bind a jury at a subsequent hearing. It is the law of the case that must remain the same and not necessarily the finding of facts by the jury. We hold that appellants were entitled to present this theory of their defense to the jury. The question then that we have to determine is as to whether the questions propounded by appellants *279
were within the issues to be tried. We must determine what was the real consideration for the deed and as to whether such consideration had been paid or performed; for it is a well-established rule that where a contract has been entered into with an insane person, in good faith, without fraud or imposition, for a fair consideration, without notice of insanity and before an adjudication of insanity, and has been executed, in whole or in part, the contract will not be set aside unless the parties can be restored to their original position. Fay v.Burditt (1882),
There is some discussion and disagreement between the parties hereto as to what constituted the consideration for the deed here involved, but we have no difficulty in determining, and we 10. so hold, that the contract executed contemporaneously with the deed and the terms and stipulations therein contained constituted the real consideration for the execution of the deed. Appellees argue in their prefatory statement that the deed in question and the lease drawn on the same day were not interdependent, that while the parties were the same, the consideration and the subject-matter of each was entirely distinct. But, at another place in their brief, they argue: "If the deed stood alone perhaps it might be shown by parol, that there were other considerations, but it is accompanied by a written contract, in which the consideration is stated specifically and contractually and where so stated all oral agreements are merged and evidence of them is excluded." If we interpret this statement correctly, it practically says that the deed and the contemporaneous contract must be construed together and that the contract and its provisions constitute the consideration for the deed. That such contemporaneous instruments *280
will be construed together is the general rule of law has been many times decided. Price v. Hart (1922),
It will be observed that the contract provided a consideration, in addition to $260 per year for the real estate, that Mrs. Kauffman should have a home with appellants and her board 11. free during the time of the existence of the lease, she to pay all her other expenses including the doctor bills and funeral expenses. The meaning of the word home, as used in such contracts, is of varied meaning and sometimes difficult of determination. It is generally safe to construe its meaning according to the particular construction given by the parties in their relations to each other in carrying out the terms of the contract, and of the existing circumstances surrounding them.Day v. Towns (1910),
What was embraced in the home that under the contract was furnished by appellants to Mrs. Kauffman? It appears by the undisputed evidence that appellants, with their family of 12. children, moved to the farm of Mrs. Kauffman and that they remained there taking care of her for about eleven years, *282 and until the time of her death. At the time they moved into the home, she was well and able to get around and occupy the home together with appellants as a member of the family. When she was well and able so to do, she participated in a measure in performing the duties of the home. In the course of four or five years, she had reached a condition of ill health which required great care on the part of appellants, and especially on the part of appellant Mrs. Gwinn, which service was freely rendered by her and accepted by Mrs. Kauffman. So much was she pleased with the treatment she received at the hands of Mrs. Gwinn, that she stated to appellees that they must be good to Stella (Mrs. Gwinn) for she had been good to her. For the last three or four years of her life, appellants carried the food to her when she was confined to her room on the second floor of the house, and cared for her physical necessities and nursed her as a mother would a child. It is apparent from all of the evidence in the case as to their relations each to the other in the home that Mrs. Kauffman lived therein as one of the family, rendering only such services as she chose to render in performing the household duties, and that she was freely given, and that she received at the hands of appellants, the most tender care. By their treatment each of the other and by their manner of conducting the home, they have put a construction upon the meaning of that word that must control in this case. It included not only a place of abode and shelter, but as well all of that care which one member of a family may render to another, whether in sickness or in health. In this case, it included such services as were rendered by appellants for Mrs. Kauffman in ministering to her necessities and making her comfortable in her declining years. With such construction on the meaning of the word, we hold that it was entirely proper, if the *283 deed under which, along with the contract, appellants furnished the home to Mrs. Kauffman was to be rescinded, that they be given a right to show the value of the services which they had rendered in the performance of its consideration so construed; they had a right to recover such value; and there could be no rescission of the deed in controversy until compensation for services rendered had been made or offered. Mrs. Kauffman had died and appellants had faithfully kept the contract into which they had entered, which with its consideration furnished the consideration for the deed. It was a consideration performed, an executed contract fairly entered into, and as such, before there could be a rescission, appellants were entitled to be placed in statu quo, and to this end, it was proper for them to show the character and value of the services which they had rendered under the terms of the contract, and as to whether there had been any offer to compensate them therefor.
Appellants complain of instruction No. 4 tendered by appellees and given by the court. This instruction undertakes to instruct the jury as to the mental capacity required in order 13, 14. to make an advancement. Appellants complain of such instruction because it did not advise the jury that it must first find that the grantor was intending to make an advancement to an expectant heir. But it was not the province of the jury to make this finding. Whether there was any intention to make an advancement must be determined by the construction of the contract here involved, and the construction of such written instrument is for the court. The instruction concludes with the statement: "And if you find from the evidence that said Sarah Kauffman did not have the mental capacity as above described, then I instruct you that said deed is voidable on the ground of mental capacity." Evidently the *284 court intended to say "on the ground of mental incapacity," and no doubt the jury so understood. But, conceding without deciding that Mrs. Kauffman did not have the mental capacity to make any advancement to appellants, still it is true that a part at least of the consideration for the deed was contractual and, in the absence of undue influence or knowledge upon the part of appellants that Mrs. Kauffman was of unsound mind, the deed was not voidable until there was an offer to place appellants instatu quo. Appellants tendered instructions upon this theory of the case, each of which was refused by the court. The failure of the court to instruct the jury as to this requirement in order to void the deed, either in this instruction or some other proper instruction, tendered by appellants, was error. They had a right to have their theory in this regard stated to the jury.
Instruction No. 5 tendered by appellee and given is as follows: "Also, to make a valid deed and contract for home and board during life and a lease or demise of lands during life and 15. in fee after death, and as an advancement to the grantee, the lessor making the deed and contract should have sufficient mental capacity to understand the nature of such a contract and lease, to know the reasonable value of her lands and rental value, the reasonable worth of her home and board contracted for, the probable duration of her life and any other matters affecting the fairness of the transaction and to retain these matters in her mind long enough to have the deed and contract drawn and rationally executed." Such instruction could be good only upon the theory that the deed and contract were to be construed together. This does not seem to be the theory upon which the case was tried. In the absence of such theory, and, unless the validity of the contract along with the deed was in issue, it *285 was error to instruct the jury as to the mental capacity required to make the contract. This instruction informs the jury as to the mental capacity required by the grantor in order to make a valid deed and contract by saying that she should be able to understand the nature of such contract and lease, to know the reasonable value of her lands and rental value, the reasonable worth of her home and board contracted for, the probable duration of her life, and any other matters affecting the fairness of the transaction. We hardly need to say that the jury was permitted to consider only such matters affecting the fairness of the transaction as appeared by the evidence.
We find no substantial error in instruction No. 6 tendered by appellees and given by the court.
Instruction No. 10 informed the jury that if it should find that Sarah Kauffman had no descendants other than appellees Anna C. Hobbs, Alta Robinson, Sarah Sowerwine and appellant 16. James M. Gwinn, who were her grandchildren, and that they were the natural objects of their grandmother's bounty and equally deserving thereof, and that, up to that time, she had held them in equal esteem and had not favored one over another by way of advancements or otherwise, and that the effect of the deed and contract was to give to appellant James M. Gwinn a much larger share by way of advancements out of her estate than she could reasonably expect each of her granddaughters to receive at her death, or much larger than she could reasonably expect to bestow upon them in her lifetime, such discrimination might be considered as corroborating the claim that Mrs. Kauffman was not of sound mind or that the deed was obtained by undue influence. We would not reverse the judgment because of errors in this instruction had a right result been reached, yet we think it is subject to criticism and that it should *286
not have been given in the form in which it appears. After calling the jury's attention to the fact that the contesting parties were descendants of Sarah Kauffman, it leaves it to the jury to find whether they were the natural objects of their grandmother's bounty without defining to the jury the meaning of that term. That such term has a well-defined meaning in law seeBreadheft v. Cleveland (1915),
Appellants challenge instructions Nos. 11 and 12 tendered by appellee and given, and instructions Nos. 10 and 11 given by the court on its own motion. These instructions inform the 17, 18. jury, in effect, that there is an issue of undue influence in the cause. Appellees say that appellants have waived their objection to these instructions upon the ground that there was no evidence of undue influence by tendering certain instructions on that question. But such instructions so tendered by appellants were after the court had refused to give a peremptory instruction withdrawing the issue of undue influence from the jury. Since the court had determined to instruct on that issue, appellants did not waive their objections to instructions given by tendering instructions expressing, in their opinion, the correct doctrine of undue influence. If there is any evidence, either direct or circumstantial, in this case of undue influence upon Mrs. Kauffman *287
inducing the execution of the contract and deed in controversy, we fail to find it, and appellees have failed to point it out. That undue influence must be something more than a mere shadow, see Wiley v. Gordon (1914),
Instruction No. 12 given by the court on its own motion was a correct statement of the law so far as it went.
Without separately and specifically considering each of the instructions tendered by appellants and refused by the court, and which undertook to instruct the jury upon the question of appellant's rights to be placed in statu quo, we hold that it was error for the court, when proper instructions were tendered to refuse to instruct the jury upon this issue. Studabaker v.Faylor, supra.
We have yet to determine as to the question of the delivery of the deed. It appears in such instrument that there was reserved therein to the grantor a life estate. This court held in 19-21. McColley v. Binkley (1919),
The judgment is reversed with instructions to the trial court to grant a new trial.
Dissenting Opinion
DISSENTING OPINION.
I cannot concur in the decision reached by a majority of this court. Some of the questions decided are questions which were, or might have been, decided on the former appeal, and, as I believe, were improperly considered. Stevens v. Templeton (1910),
It has been held that stronger proof is required to establish undue influence in case of a will than of a *290
deed or contract. Shipman v. Furniss (1881),
It seems to me that if the courts are to hold that the terms of an unfair contract, coupled with the circumstances surrounding the transaction, tending, as they do in this case, to show fraud, are to be treated as no evidence, then judicial decisions open the way for shrewd and dishonest individuals so to cover their work that they cannot be reached by the law. It may be that Gwinn was guilty of no fraud in procuring the deed and lease, but whether he was or not, was, under the evidence and under our system of jurisprudence, a question for the jury, subject to a review by the trial court on motion for a new trial. Three juries have said that Gwinn was guilty of fraud, and three trial judges who saw and heard the witnesses overruled motions for a new trial. From the extended discussion of the evidence in the prevailing opinion, particularly the evidence most favorable to appellants, I have a conviction that there has been a weighing of the evidence. This court, in ruling on an objection to the sufficiency of the evidence, should consider only the evidence most favorable to the appellee. Vandalia Coal Co. v. Coakley
(1916),
Dissenting Opinion
DISSENTING OPINION. I concur in part and dissent in part. It appears that the plaintiffs below (the appellees here) are grandchildren of one Sarah Kauffman, deceased; and that they claim to own the land described in their *291 complaint through inheritance from their mother. If their mother died intestate and was the owner of the land at the time of her death, and if the land descended to them as her children, by virtue of the statute of descents, then the title which they thus inherited is a legal title. They instituted a simple statutory action to quiet their alleged legal title against the defendant James M. Gwinn (the appellant here) on the ground that he claimed title adversely to them and that his claim is without right and unfounded and a cloud upon their title. At the trial, the plaintiffs introduced a deed executed by Sarah Kauffman to James M. Gwinn, conveying the real estate described in the complaint. Then they sought to destroy that deed by proving that it was obtained by fraud. To me it is clear that when the plaintiffs introduced that deed, they thereby established a prima facie title in the defendant and destroyed their own alleged cause of action by showing that their ancestor did not own the land at the time of her death. The plaintiffs know that so long as the deed stands, they cannot recover. The thing they are actually seeking, therefore, is a cancellation of the deed. Whether or not the deed shall be canceled is a question which cannot be tried by jury and determined by their verdict. The statutory form of complaint to quiet title may not be used to conceal the plaintiffs' real purpose which is to cancel a deed for fraud.
The plaintiffs also adduced in evidence a written contract made by and between the defendant and Sarah Kauffman at the time the deed was executed, which relates to the consideration for the deed. If the deed should be canceled, then the liability of the deceased and the rights of the defendant arising out of that contract must be ascertained and adjusted. It is clear to me that in this case justice cannot be done by a jury. The case is one exclusively for the court. *292
I agree that the judgment should be reversed, but I insist that the trial court should be directed to dismiss the action. This should be done regardless of what was said by this court in the former appeal. I am of the opinion that the cases cited in the opinion in the former appeal do not sustain the proposition that there may be a cancellation of the written instruments and an adjustment of the rights of the parties in a statutory action to quiet title.