74 Mo. 326 | Mo. | 1881
This suit was instituted in the circuit court of Carroll county by the heirs of James Hensley, deceased, to set aside two deeds made by their ancestor to his son Foster Hensley, conveying to him certain land in said county. One of the deeds was dated 21st of September, 1874, and acknowledged the 24th of the same month ;■ the other was dated the 22nd of December, 1875, and acknowledged the same day. The first was a deed of general warranty executed by said Hensley alone, the second was a quit-claim executed by said Hensley and also by his wife. Both of them conveyed the same land. The grounds alleged in the bill for vacating and setting aside these deeds are substantially that said James Hensley was at the time of their execution of unsound mind and wholly incompetent and unfit to manage his affairs ; and that said deeds were obtained by fraud, misrepresentation, constraint and undue influence. These allegations of the petition were denied in the answer, and upon the trial of the cause, the court found the issues for defendant and entered judgment accordingly, and it is this finding and judgment we are asked to review on plaintiff’s appeal therefrom.
While the evidence in the record shows that James Hensley, the grantor in these deeds, was about seventy years of age, and in the month of August, 1874, was stricken with paralysis which greatly impaired both his powers of mind and body, it falls short of showing that he was incapable of contracting or that he did not under
Four other witnesses were examined on the part of plaintiffs; one of whom, John Calvert, testified that after said attack said Hensley appeared to be entirely helpless; his tongue was so paralyzed that he could not understand him; his wife interpreted for him; could not state the condition of his mind in August and September, 1874, because I could not understand him. His answers to my questions as uttered to me by his wife, were intelligent. When I first saw him in 1874, could tell nothing about his mental condition; after I could understand him, I never regarded him as insane; I only mean'that his mind was weak * * I never regarded his mind as unsound or insane.
Charles Kuhn, another of plaintiffs’ witnesses, testified as follows : Have known Hensley since 1864. He was a lair business man before sickness; saw him first after his sickness in fall or winter of 1874; very difficult to understand him at that time. He had frequent crying spells when talking to me. I saw him five or six times during sickness; could not see any change in his mental condi-' tion. He would always cry when talking of his family. He would sometimes say he was dissatisfied with a part of his family, and say they had mistreated him, and then he would complain of others; sometimes complain of one and then another. I talked with him about our business. He talked intelligibly, and I thought he was hard on me; only cried when he talked of his family. I had two suits against him. He settled them with me through an agent, Mr. Barr. He talked intelligently about our business. I thought he was hard on me in the settlement.
K. Rogers testified as follows: Have known Hensley since 1864; lived on his land a part of the time; since then have lived in DeWitt; knew Hensley well all the time before sickness ; his mind was good; regarded him as a firm man ; did not see him until the election in November, 1874, after his sickness; talked with him on that day in ITanmer’s drug-store some three-quarters of an hour. He was very weak in body and mind. He had been hauled in to vote, and had to be helped out of the conveyance; his conversation was very indistinct, and one íiad to be very particular to understand him. I considered his conversation very broken ; when he talked about things in the past it was connected, when of recent events it was broken. Don’t think any one was present when I conversed with him. I think his talk was to some extent unintelligible. He spoke of being an old fool for coming out to the election; and said some persons were stealing his timber; others would pay for more than they got, and some would not pay anything at all.
Mr. Williams, another witness for plaintiffs, testified that he had known Hensley for twenty-one years. Did not see him for a year after his sickness; his speech then was bad ; had to have an interpreter. He could scarcely get about. I don’t think his mind was in a condition to attend to business. I would not have bought land of him. On cross-examination witness stated that he saw Hensley at the election and attending to a lawsuit. Hensley said he desired to be excluded from the church, his wife having been turned out; saw no evidence of insanity ; his conversation about the church matter was sensible.
On the other hand defendant introduced ten or eleven witnesses, among whom was Dr. Logan, who had been Plensley’s family physician for thirty years, and attended
Eight other witnesses were introduced on the part of defendant, all of whom testified that while, after the attack of paralysis, Hénsley was weaker in body and mind than before, he was, nevertheless, capable of transacting business. Among the witnesses introduced wTas the assessor of the county, who testified that he saw him two months after he was paralyzed, and that he gave in his list of property with as much intelligence as usual; gave the numbers of his land without referring to his deeds; said that one half acre had been taken from the tract given to Eoster; saw him next when he bought some boards of him, which he sold at the usual price; thought his mind was sound up to the time of his death; that he could not understand him without the help of his wife, who interpreted for him. Another witness testified that he was at Hensley’s house in August, 1875. There was considerable conversation about a suit; that he seemed to understand all about the suit-, and knew exactly what he was talking about; that he afterward sent for witness to do some surveying for him in the fall; gave instructions about the matter, and told me that at a certain place there were two surveys. He told me more about the land than most men could do; exam
There was no evidence tending to show any relation of trust or confidence between said Hensley and defendant, except that which exists between parent and child, and such relation is not sufficient to justify a deed or conveyance from father to son being vacated and set aside without showing the exercise of some undue influence or the existence of fraud, or that some advantage had been taken by the son of the father’s weak condition of mind. The cases of Garvin’s Adm’r v. Williams, 44 Mo. 465; Ford v. Hennessy, 70 Mo. 580; Bradshaw v. Yates, 67 Mo. 221, and that class of cases to which we have been cited by counsel, are only applicable to gifts, grants or donations obtained by attorney from client, spiritual advisor from advisee, trustee from cestui que trust, parent from child, guardian from ward, and that class of transactions. They do not apply to cases of gifts, grants or donations from parent to child.
It appears from the evidence that the grantor instituted suit to amend the deed made by him dated September, 1874. This suit was compromised and dismissed in December, 1875, when the second deed was executed, Foster Hensley paying the costs of the suit, the attorney’s fee and $250
Motion for Rehearing Overruled.