87 Va. 360 | Va. | 1891
delivered the opinion of the court.
The record discloses the following case: On the — day of April, 1887, the petitioners and their mother, Sarah E. Jones, filed a bill in the chancery court of the city of Richmond against William M. McGruder, John T. Jones, and Jerry W. Jones, to set aside the deeds hereinafter referred to; and the defendants having demurred to the bill on the ground that Mrs. Sarah E. Jones was not a proper party to the suit, the court sustained the demurrer and dismissed the bill, with leave to petitioners to bring another suit without joining their mother. Thereupon, on the 5th day of August, 1887, • petitioners, as children and heirs-at-law of John E. Jones, deceased, filed their bill alleging that their said father died, intestate, February 18th, 1887, in Henrico county, Virginia; that Thomas N. Page qualified as administrator of his estate on the — day of April, 1887, in due form; that their father, John E. Jones, and their mother, Sarah E. Jones, lived unhappily together, and the latter, in 1884, instituted her suit for divorce and alimony, which was dismissed in 1885 ; that John E. Jones was then possessed of some real estate in Henrico county, Virginia, in his own right, and of a very large estate in right of his wife, in which he had a life interest only; that attempts had been made to secure a division of this property for the separate enjoyment of John E. Jones and Sarah E., his wife, which failed ; that John E Jones was, and for a long time had been, an inordinately and constantly intemperate man, of impaired mind and will power; and, greatly and irresistibly under the influence of his first cousin, John T. Jones, and one
The bill further alleges that Jerry W. Jones and William M. McGruder now claim that they had previously purchased
The bill charges (and the uncontradicted evidence proves), that the existence of this contract of October 13th, 1886, which is in the handwriting of John T. Jones, was carefully concealed from Mrs. Sarah E. Jones and her counsel, Thomas N„ Page and- T. N. Garter, during all the negotiations and at the execution of the deeds of November 24th, 1886; and that if Mrs. Jones, or h'er counsel, had known thereof, she never would have consented to an agreement which gave to McGruder and Jerry W. Jones, in fee, more than $10,000 worth of her maiden property for the sum of $4,000 nominally paid to her husband, but of which he had never received one cent.
It is further alleged in the bill, that although John T. Jones and William M. McGruder, and Jerry W. Jones, all knew of the transaction of October 13th, 1886, and of the qualification of Thos. N. Page as administrator of John E. Jones, deceased, they carefully and successfully concealed from Mrs. Jones and her counsel, and from the said administrator, and from the complainants, the fact of the existence of the contract of October 13th, or that these notes had ever been given, and that they, or either of them, held them, and held them endorsed by John E. Jones; and so, in themselves, a receipt in full; and the fact that they were unpaid; and that these facts, and the existence of the 13th of October contract itself, were only revealed, in the spring of 1887, after the litigation to set aside the fraud had been actually begun.
The bill charges that there was never any real purchase of the property conveyed by the deed of November 24th, 1886, from John E. Jones, by Jerry W. Jones and William M. Mc-Gruder; and that it vras conveyed to William M. McGruder and Jerry W. Jones, without consideration, and for some purpose by which John E. Jonés believed, and was made to believe, that it still belonged to him, while they held the legal title so as to bar the marital rights of his wife. But the bill expressly charges, that, if the real object and effect of that deed bf November 24th, 1886, is to convey the property to the nominal vendees in that deed, that it was procured by concealment and fraud, and for no consideration; and that, therefore, the said vendees are mere trustees for John E. Jones, living, and for his children and heirs-at-law, he being dead. The bill charges that William M. McGruder and John T. Jones (who, it is alleged, is the actual purchaser with McGruder), weije both insolvent; that Jerry W. Jones was John T. Jones’s tool, used
On the 8th of October, 1887, William M. McGruder and Jerry W. Jones answered the bill; and on the 28th day of February, 1889, after all the evidence had been taken, John T. Jones and M. M. Gilliam filed their answers. The material averments in the bill are all denied in these answers, to which oath was waived in the bill; and.pleas were also filed setting up the same defence as embraced in the answers.
The proofs consist of a number of letters, and a vast mass of' documentary evidence, and the depositions of sixty-eight witnesses and the exhibits therewith, covering over seven hundred' closely written pages. On this written evidence the case was heard; and on the 16th of November, 1889, the court entered the decree, now appealed from, holding, for reasons assigned in. a written opinion, that John E. Jones, the father of the appellants, was, on the 24th day of November, 1886, of sound mind,, and capable of attending to business; that the contract and deed asked to be set aside were not obtained by undue or improper influence; that John T. Jones was not interested in-them, nor in the property conveyed; that they were made-fairly and for valuable consideration, and were intended by the parties to be absolute sales, with no secret trust resulting to petitioner’s father, or to petitioners; that William M. McGruder and Jerry W. Jones acquired and are decreed to hold the property conveyed by the deed of 24th of November, 1886, in fee-simple; and that the injunction awarded the complainants,, on 12th of August, 1887, he dissolved.
While most of the witnesses for the defendants, who give their opinions that John E. Jones was capable to contract in the fall of 1886, lived at a distance from Jones, on other roads, or in Richmond, the plaintiff’s witnesses were his immediate neighbors, and comprise his landlord, his druggist, his merchants, his family physician, and his most intimate friends, who saw and visited him habitually, day after day. Dr. Stapleton Coates, his family physician, than whom, the evidence is, no man stood higher in Henrico county, either as a man or a physician, says that he met John E. Jones frequently, and practiced in his family for three years before his death; that Jones was a very intemperate man, and that he supposed
mind a complete wreck;” and he gives his opinion as a physician and from his critical knowledge of Jones’ condition,, that in the fall of 1886, Jones “ was not in a condition to transact any business of importance.” He says, positively, that Jones showed permanent injury of the brain, the symptoms, of which he had noticed at least three years before he died, and that many persons in the neighborhood thought that Jones-was demented, and that it had increased on him. This is the-testimony of his expert family physician. (Cheatham v. Hatcher, 30 Gratt., 65.) Mere opinions of a man’s mental condition are-comparatively worthless, and their weight or value depends-on the opportunities which the persons holding them have-had of forming correct opinions, and especially is this 'the casein respect t'o a man whose mind is charged to be affected by long and habitual excessive drinking. The testimony of more than-fourteen of Jones’ nearest neighbors, friends and domestics, is,, that he was constantly so steeped in liquor, and his mind so impaired, that he was incapacitated for any business, and was-extremely subject to imposition and undue influence and fraud,, and that his general reputation, among those who lived with, him, waited on him, worked for Jhim, saw him day after day, and had most to do with him, was that his mind was impaired so as to make him say and do many acts and things which oniy a man irresponsible and out of his mind could do.. In respect to his condition at the moment when the deeds assailed were actually executed, there were three witnesses who-’ were present at the factum. John T. Jones swears, of course, that Jones was sober and in possession of his mental powers. Corydon Sutton only says: “As to his competency, at times,
But whatever may have appeared to have been John E. Jones condition and apparent intention at the moment and in the act of the factum, in the opinion or belief of others, there is no doubt as to John T. Jones’ knowledge of his cousin’s condition in the fall of 1886. Otis H. Russell, the postmaster of Richmond city, testifies: “During the last year of John E. Jones’ life, it seemed to me that he had become almost incapacitated to transact business properly; in fact, almost an imbecile, from the use of alcohol. I think his condition was well known to John T. Jones, because he and I talked over his situation and condition a number of times, in which he expressed, in the kindliest feelings possible, his pity for his condition, and I did the same to him. We often deplored his condition, both being friends of John E. Jones.” He then refers to particular conversations with John T. Jones on this subject, in one of which John T. Jones said, “that in order to save some $4,000, which John E. Jones had in bank from his wife’s claims in the divorce suit, he had advised John E. Jones to draw it out and deposit it again in his, John T. Jones’name; that John E. Jones often afterwards regretted that he had not taken his advice. That his relations to John E. Jones being known to his wife, it was almost impossible for him to see him at his own home,” &c. The witness, Russell, continues, “I don’t remember his exact language, but the purport of the conversation was, that the poor fellow was incapacitated to transact any business. He deplored that, as a fact, while explaining the difficulty of his friends in helping him out of his difficulties while such was his condition. All of the conversations in
There were two men—his near neighbors and most intimate friends, John T. Jones and William M. McGruder—on whom John E. Jones placed the greatest reliance, and in whom he confided implicitly and absolutely, without guard, suspicion, or reserve. He was McGruder’s bondsman as treasurer of Henrico county, as he was also surety on the official bonds of John T. Jones as sheriff and as deputy treasurer, and he intrusted them with his business. These men, John T. Jones and McGruder, were as intimate as two men could possibly be; they were principal and deputy; they were partners in business enterprises; they were both insolvents, and they held and transferred property for and to each other, turn and turn about—mutatis mutandis—to keep their creditors from getting it, and they were always together, mutually assisting each other as adepts and graduates in the practice of fraud prior to the perpetration of the transaction under review in 1886. The evidence shows that John T. Jones was not only an insolvent, but he was indebted to McGruder as his deputy treasurer; and McGruder was insolvent and a defaulter to the Commonwealth, and had judgments against him for over $30,000. A noble pair of brothers!
George W. Jewett, a brother-in-law of the sisters of John T. Jones and J. W. Jones, a recent member of the Virginia legislature, and as closely connected in business and socially with
The record shows that John E. Jones was often and intimately at the house of William M. McGruder; and that upon one occasion he was given a whole goblet of whiskey, and made beastly drunk, as a preparation for negotiations to sell some of his property to McGruder.
The Commonwealth had judgments against McGruder,' as surety for one Huffman, sheriff of Henrico" county, for §17,-213.63, principal, &c., besides interest. In anticipation of these judgments, McGruder had fraudulently conveyed all his property to one Ellett; and the Commonwealth had instituted suit to set aside the conveyance as fraudulent, and to subject the property to the payment of the judgments.
These judgments were ljens upon McGruder’s share or interest in the property claimed by him under the deed of 24th November, 1886, from John E. Jones and wife, if, in truth, the conveyance was not an arrangement in trust and for the benefit of John E. Jones, as Mrs. Jones and her counsel, Messrs. Thomas-Nelson Page and Thomas Nelson Carter, were led to believe; they having not the slightest knowledge, intimation, or suspicion given them of the existence of the secret so-called contract and notes of October 13th, 1886, then in the possession of John T. Jones, who was present at the signing of the deeds. It was necessary, therefore, to get rid of these judgments; and, accordingly, on the 17th day of December, 1886, McGruder signed a communication to Colonel Marye, the auditor, as follows :
*376 “I was surety for P. H. Huffman, sheriff of Henrico county, Va., immediately after the war. .The Commonwealth, in 1867, obtained judgments against Huffman and his sureties for about $15,000. I desire to remove all doubt as to my liability on those judgments in favor of the Commonwealth, and therefore offer, as a compromise, $500 in lawful money of the United States, to have those judgments marked ‘satisfied’ as to me, to be paid within thirty days.
“Wm. M. McGruder.”
On this Marye endorsed, on December 20th, 1886:
“As proceedings have been pending for many years in the circuit court of the city of Richmond, to subject the property of Wm. M. McGruder to the payment of the judgments referred to in his foregoing letter, and, so far as I can learn, there is now no property visible, belonging to him, which can be so subjected, I propose to accept this proposition contained in said letter, provided the attorney-general and the judge of the circuit court approve such' course.
“Morton Marye, “Auditor Public Accounts.”
On the same day, Attorney-General Ayers endorsed on this paper:
“I advise and approve the within.”
This statement of Auditor Marye, based upon the distinct ground that there was no property belonging to McGruder which could be subjected, was accepted by McGruder; and on the same day, upon the foregoing statements and endorsements, the circuit court of Richmond city entered a decree, drawn by Mr. Gilliam, discharging McGruder upon his paying the $500.
If McGruder then claimed to be the owner (as he now does)
On the 23rd of December, 1886, McGruder and Jones executed to M. M. Gilliam and John K. Branch a deed of trust on a part of the property conveyed by the deed of November 24th, 1886, to secure the payment of a loan of $7,800, out of which sum a net balance of $5,258.47 went into the hands of M. M. Gilliam as counsel for J. W. Jones and McGruder; of which a balance of $4,018 22 was deposited in bank by the order of the circuit court, to the credit of the cause, March 11th, 1889.
Though John E. Jones lived until the 18th day of February, 1887, he never actually received one cent from J. W. Jones and McGruder on this transaction. In October, 1886, John E. Jones was the owner of an estate whose cash value was over $15,000, and the possessor of one much larger, for a part of which an offer of $9,000 had been made him through his agent, John T. Jones; and, in November, the same hapless and helpless John E. Jones stood stripped of everv dollar he
John E. Jones, after the deeds of November 24th, 1886, had been executed, retained possession of, and exercised every right of absolute ownership over, his property in Henrico county, and when he went to his agents, Sutton & Co., to collect his rents for the Richmond property, as usual, in December, 1886, and was advised that John T. Jones and Wm. M. McGruder had been there and notified them that they had bought the property and it belonged to them, and to pay the rents thereafter to them, he exclaimed, “Damn it, they are trying to cheat me'out of it—swindle me!”; and his landlord, Robert Taylor, says that he repeatedly made the same statement to him, saying, pathetically, that he never thought his own cousin would rob him of every cent in the world.
The legal principles bearing upon the facts in this case are fully and explicitly laid down in Moore v. Ulman, 80 Va.; Hickman v. Trout, 83 Va.; Fishburne v. Ferguson, 84 Va.; Low v. Trundle, 78 Va.; Davis v. Strange’s Ex’or, 86 Va.; Samuel v. Marshall, 3 Leigh; Parr v. Saunders, Vol. XIV. Va. Law Journal, pp. 437-8; 2 Kent’s Comm., 484 ; 2 Minor (3d Ed.), 644; Allore v. Jewell, 94 U. S., 511; Green v. Bridgeman, 14 Vesey, 289; Kerr on Fraud and Mistake, pp. 94 and 190.
In the case of Parr v. Saunders, supra, Judge Staples, for
Our judgment is, that the appellants are entitled to a decree declaring that J. W. Jones and Wm. M. McGruder, nominal grantees in the deed of November 24th, 1886, from John E„ Jones and wife, are trustees for complainants, and directing the conveyance to them of all the property embraced in the said deed. But that property has been encumbered by McGruder and Jones to the extent of $7,800. 'Of the net proceeds of that loan $741.53 were spent in paying taxes due on the property, and charges of parties ignorant of the true nature of the transaction, which appellants must loser The balance of $5,258.47 went into the hands of M. M. Gilliam, counsel for Jones and McGruder, and appellants are entitled to a decree against the said counsel and J. W. Jones, Wm. M. McGruder and John T. Jones for that said-sum of $5,258.47,
The decree of the chancery court appealed from is wholly erroneous, and must be reversed and annulled; and the cause will be remanded to the chancery court of the city of Richmond for further proceedings in accordance with this opinion.
Decree reversed.