160 P. 527 | Or. | 1916
delivered- the opinion of the court.
James H. Shipley was a neighbor who lived “about a couple of hundred yards from” the Ditmars home. About ten days before the sale Ditmars asked Shipley if he “wouldn’t like to buy a piece of land,” explaining to Shipley that:
“He had a mortgage on his own place, and if he could sell that piece of land when he got that he would turn it in on his own mortgage on the farm, and it would help him out to get some tools to'farm with and other things he needed on the farm at the time.”
Shipley told Ditmars that he would make up his mind a little later, and the former testified that:
“The next time I met him down in the river bottom, he asked me, ‘What about that trade?’ and I told him we would go down the next Sunday and measure it off and look it over; so we did.”
In company with another person they measured off the land “about where the line would come to.” They agreed upon a price of $1,600, which was to be on terms of $600 cash and a note and mortgage for $1,000. The land was not reasonably worth more than the agreed price. Ditmars said the whole farm was leased, but Shipley told him if he “could get possession, the price and.terms was satisfactory.” Shipley arranged with the lessee for possession of the land, and then “told Ditmars I guessed we could trade and
Ditmars transacted important business both before and after the execution of the deed to Shipley. On October 12, 1897, Ditmars received the Sawyer deed, and at the same time executed the Hunsaker mortgage. The notary public who witnessed and took the acknowledgment of Sawyer to the deed did not notice anything wrong with Ditmars, and the person who acted as the second witness to the Sawyer deed and who also witnessed and as notary public took the acknowledgment of Ditmars to the Hunsaker mortgage testified that:
“During this transaction, Mr. Ditmars conducted himself in a rational way. I could see nothing wrong with the man’s actions, and we talked over the business.”
The Forrest mortgage was executed by Ditmars and his wife, on October 14, 1899, and at that time, according to the testimony of M. D. L. Ehodes, who acted as notary public and as a witness to that instrument, Ditmars comprehended the business; and Judge E. Y. Littlefield, who also witnessed the mortgage testified that Ditmars “was competent to transact business,” and “the question never entered my mind but what he was as sane as any man could be. ’ ’ This witness knew that Ditmars had been in the asylum, and on that account it is fair to assume that
The evidence shows that John A. Ditmars comprehended the business in which he was engaged, and understood the nature and effect of the transaction when he signed the deed. He had a good reason for selling the land; he went about the business in a reasonable manner; and he received the full market value of the land. His mentality measured up to the gauge which both medical experts applied. He possessed a sufficient understanding to meet the test fixed by the law, and the deed to Shipley was therefore valid.
Although it is not necessary to proceed further with the discussion, yet a better understanding of the surroundings may be had if we again look at the record. Some light is thrown upon the attitude of Tillie Ditmars Kirkwood and the position now taken by the defendant when it is recalled that no assault was made upon the deed until the commencement of the action in 1913 to eject Magness; and no claim was ever made, or even intimated, that Ditmars was incompetent to sign- the deed until 1911, when, according to the testimony of the plaintiff, Mrs. Tillie Ditmars Kirkwood told him that:
“If I went ahead with the suit [concerning the right of way] she would bring this suit against me for the property on the grounds that Ditmars was not capable of making a deed.”
For a period of 12 years Mrs. Tillie Ditmars Kirk-wood, the widow of the deceased, the administratrix of his estate and the guardian of his child, recognized the validity of the deed, not only by her failure to object, but also by her positive acts of approval. She signed the Forrest mortgage which excepted the 80 acres sold to Shipley; she affirmed the deed when she
The decree is affirmed. • Affirmed.