206 Ky. 540 | Ky. Ct. App. | 1925
Opinion of the Court by
Affirming.
E. P. Isaacs, a resident and citizen of Jackson county, Kentucky, died in that county on November 24, 1918. He had never been married and at the time of his death left surviving him three brothers, Green Isaacs, W. R. Isaacs, and G. P. Isaacs; three sisters, Anise Lakes, Lottie Tyra and Lena Tyra; two nieces, Mary J. McQueen and Alice Rose; and a nephew, Pal. Isaacs, as his heirs at law.
It appears that the decedent, E. P. Isaacs, and appellant, G. P. Isaacs, at different times had purchased and there had been conveyed to them jointly a number of tracts of land in Jackson county, Kentucky. In March, 1918, some nine months before the death of E. P. Isaacs, by their joint deeds of conveyance they conveyed all the lands — the title of which was held by them jointly — to-the various children of appellant, G. P. Isaacs, a separate deed being made conveying separate lands to each child. After G. P. Isaacs filed the answer in the original suit claiming the 86 acres of land sought to be sold therein, the parties who sued as plaintiffs in that action filed suit against G. P. Isaacs and his children, to whom the deeds had been made on March 11, 1918, for a cancellation of those deeds in so far as they undertook to convey any interest owned by E. P.-Isaacs in the land sought to be conveyed by them, upon the ground that the execution of the deeds had been procured by fraud and undue influence, and the further ground that- at the- time he signed, acknowledged and delivered them E. P. Isaacs was of unsound mind and did not have sufficient mental capacity to convey his property. The defendants in the second action denied the allegations as to fraud, undue influence and lack of mental capacity and invoked the same-title bond relied upon by G. P. Isaacs in the first suit to aid' them in their defense. They claimed that the deeds in question
As the case was prepared and tried and as is conceded by the brief filed herein by counsel for appellant, the vital question for determination is the validity or nonvalidity of the title bond under which appellant, G. P. Isaacs, claims the 86 acre tract of land and the other appellants, his children, claim E. P. Isaacs’ interest in the other lands conveyed to them by the deeds. The pleadings in the case beyond all question cast upon appellants the burden of establishing by competent evidence the execution of the title bond by E. P. Isaacs. The chancellor adjudged that none of the evidence offered by appellants to establish that fact was competent. Our consideration of that question forces us. to the same conclusion. G. P, Isaacs and his wife, Matilda Isaacs, and some two or three of their children, to whom the lands were conveyed by the deeds in question, testified that E. P. Isaacs signed and delivered the title bond. They w;ere all parties in interest and in testifying on that question were testifying for themselves concerning a transaction had with a decedent and concernir! g acts done by a decedent. Such testimony is in direct conflict with subsection .2 of section 606 of the Code of Practice, and the chancellor properly adjudged all of that testimony to be incompetent. No other testimony was offered by appellants to establish the execution of the title bond.
Appellants contend by their testimony that after the execution of the title bond decedent, E. P'. Isaacs, never owned or claimed to own any of the lands in controversy or any property of any kind. The record discloses, however, that subsequent to the date of the title bond and down to the date of the death of E. E. Isaacs, the 86 acre
As we wrote in Sword v. Fields and Cross, 192 Ky. 629:
“The law is that transactions of this kind between near relatives or those occupying a confidential relation to each other will be closely scrutinized, and the burden is upon him who claims thereunder to show ‘by the clearest evidence’ that the transaction was freely and voluntarily entered into and devoid of inequitable incidents.” (See also Watson v. Watson, 190 Ky. 270 Kelly v. Fields, 167 Ky. 796; Miller v. Taylor, 165 Ky. 463; McDowell v. Edwards, 156 Ky. 475; Bozarth v. Banister, 143 Ky. 476; Smith v. Snowden, 96 Ky. 32.)
If appellants had not staked their case upon the validity of the alleged title bond, wliich they wholly failed to establish, as shown above, and as held by the chancellor below, we are forced to conclude that the facts and circumstances of this case -clearly bring it within the principle of law above quoted. The decedent, whose conveyances are questioned, was the brother and uncle of appellants and resided in their home. He was beyond all question in such a condition both mentally and physically as to render Mm easy prey to undue influence. It is doubtful from the record whether at the time the deeds were executed he had sufficient mental capacity to realize what he was doing. . The deeds falsely recited a consideration that was not paid. One of the beneficiaries of the deeds, who is a brother of the other beneficiaries, wrote them and took the acknowledgments. He was ap
“The recital of the false consideration carries with it the thought and purpose of a designing and intentional concealment of the truth, and this falsehood and concealment are the highest evidences of the fraudulent intent with which the wiitings were procured, not necessarily of actual but of constructive fraud, assumed in view of the relation of the superior contracting with the inferior, the independent with the dependent, the strong with the weak. The grantees, it seems to us, can find no relief in assuming the position, after the attack on the deeds was made, that the real consideration was- love and affection, and an. agreement to care for the grantors during the remainder of their lives.
‘ ‘ The intent in the procurement of the writings must be gathered from the recitals of the writings themselves, and the beneficiary will not be relieved of the necessary inference of- intentional deceit on his part by asserting a consideration inconsistent with the one named in the writing. ’ ’
In view of the circumstances surrounding the parties and their relations to each other, we can not escape the conviction that the chancellor properly concluded that the burden was upon the grantees in the deeds- in question to establish that the transactions were freely and voluntarily entered into and were devoid of inequitable incidents; and that they failed to sustain the burden. In fact, the evidence rather establishes the fraud of the transactions.
It is insisted, however, for appellants that by the judgment rendered below the chancellor cancelled certain deeds when the record shows that decedent, E. P. Isaacs, did not own and never had title to the lands conveyed by those deeds. It does appear from the record and the copies of the deeds filed therein that by two of the deeds cancelled .there were conveyed to the grantee lands in
Finding no error in the judgment appealed from herein it will be affirmed.