112 N.W. 1058 | N.D. | 1907
Lead Opinion
This action was instituted under the statute to quiet title of the plaintiffs to the N. W. of section 17, tp. 149 N., range 49 W., of the Fifth P. M. The action was tried by the court, and an appeal taken under section 7229, Rev. Codes 1905, and is before this court for a trial de novo.
■ This court, after a careful investigation of all the evidence in the case, has arrived at an opposite conclusion, and must hold that the deed is valid. Such being the situation, it will be entirely unnecessary for us to discuss many questions of law which are presented by counsel for appellant, such' as those growing out of estoppel, laches and res ad judicata, claimed by them to have existed because, this deed being valid, then it is a conceded fact and must follow from the whole record that the title of Julia Thompson to an undivided half interest in the land must be quieted in her.
1. Preliminar}'- to a short discussion of the evidence, the court must pass upon the proper admission of certain of the testimony which was offered by counsel for respondents, and as often objected to by counsel for appellant. An illustration of the questions objected to would be the following, taken from the direct examination by Mr. Corliss, of Tora Solum, found at folio 219 of the abstract: “Q. From what you saw of your father’s conduct after he had this trouble, and from what you observed about his ab-sense of speech and answering ‘Ya, ya,’ and 'Nay, nay,’ senselessly at times, and from all that you saw of him at that time, his conduct and everything else, what is your opinion — I do not ask you what you know, but what is your opinion as to whether your father had any idea of business at all?” Mr. Skulason objected to this line of questioning upon the grounds that it was not competent, was opinion evidence, irrelevant, immaterial and leading. “There is no more familiar principle in the law of evidence than that opinions of witnesses are in general irrelevant, even when witnesses are limited in their statements to facts within their own knowledge. Their bias, ignorance and disregard of the truth are obstacles which too often hinder in the investigation of the truth; but the general rule rejecting evidence as to the opinions of witnesses is subject to very important exceptions. It often happens that it is impossible for a witness to detail all the pertinent facts in such a manner as to enable a jury to form a conclusion with
■ 2. The question is naturally suggested by the record in this case, in view of the provisions of' section 4018 of the Revised Codes of 1905, which declares that a person entirely without understanding has no power to make a contract of any kind, just what those provisions mean when applied to facts like those in the case at bar. We are of the opinion that the rule as laid down in Jackson v. King, 4 Cow. (N. Y.) 207, 15 Am. Dec. 354, is the correct one, viz., that, “upon the question of incapacity to render to deed invalid, they must be satisfied that the grantor was not in a situation to transact that particular business rationally — nor, on the one hand, that he should be .capable of doing all kinds of business with judgment and discretion, nor, on the other that he should be wholly deprived of reason, so as to be incapable of doing the most familiar and trifling work, that, if the mind and memory were in such a situation at the time of executing the deed as to render him wholly incompetent to judge of his rights and interest in relation ■to -that transaction, the deed would be void.” Counsel for the respondents urge this rule as being the correct one to be applied. We are in perfect accord with him in this contention. They insist that the ancestor, Kittel Olson, was not in a situation to transact the particular business rationally of giving a deed to his son, Ole
To properly measure the testimony in this case, it will be necessary to take a broad view of the surrounding circumstances. We find a man of fair intelligence, a widower, living with his son, suddenly stricken with paralysis of the body and especially of the face and organs of speech. He was the-owner and in possession of a quarter section of land, mortgaged to a certain extent, at a period when there was no great advance in the price of real estate, and long before the great advance which has come to lands in this country during the past 10 years. .He permits his children to continue farming the land, everything runs along satisfactorily, and in the course of a few years a deed is given to the son who is then taking care of his father, and the evidence shows that this son agreed to provide his father with his future support in consideration of the deed. The old gentleman lives, regains his powers of locomotion, his ability to visit his neighbors, to receive the communion under the particular solemnities required by the Lutheran church, of which he was a member. The son dies, and the grandchildren, Thone Salemonson and Charles O. Myron, continue to care for the grandfather and fully carry out the agreement made by their father with him. For a period of over 17 years there was no move whatever made to set aside said conveyance or to disturb in any manner the relation of the land in question. So far there would appear to be nothing unnatural in the transaction or anything which would be suggestive of fraud upon the part of the son, Ole Kittelson, in getting the deed. No brother or sister up to this time has been heard to suggest in any manner or form that the deed was not of binding force. When Ole Kittelson died, his estate was probated in the usual manner, and the title shown to be vested in Thone Salemonson and Charles O. Myron. There was no suggestion that these proceedings were carried on in any secret manner whatsoever, and, indeed, from the conditions surrounding the entire transaction, everything appears to have been-done in a natural and orderly way. Not until an unfortunate act occurs, when it appears that Charles O. Myron committed a great wrong upon Julia Thompson, the defendant in this action, for which he was sued, judgment secured, and his interest in said land subjected to the payment thereof, do we approach the first suggestion that Kittel Olson was insane and his deed
Twenty-two witnesses were sworn. The larger number of those who testified for the plaintiffs were relatives and personally interested in the outcome of the litigation. Two or three witnesses for the defendant were likewise related in some manner to her. It is very clear from a reading of the testimony that all the witnesses who were related to one side or the other were largely influenced, and their testimony was highly colored by virtue of ■the fact of such relationship. The testimony of the plaintiffs went - but very little into detail, and its greatest strength lay in the fact that it was their opinion that the ancestor, Kittel Olson, was non compos. This opinion comes from a class of witnesses who have fdr 17 years remained silent with reference to their ancestor’s diseased state of mind, and now, in order to accomplish the purpose of setting aside the deed suddenly arrive at the opinion which they announce. As was stated above in the rule with reference to opinion evidence, “their bias is an obstacle which hinders in the investigation of the truth;” and, while the court permits this .testimony to be considered, yet it does not believe that it rises to that
The decision of the lower court is therefore reversed, and that court is directed to enter judgment in favor of the defendant, Julia Thompson, quieting title in her as to an undivided one-half of the land in suit.
Dissenting Opinion
(dissenting). I dissent from the conclusion reached on the question of fact as to the competency of Kittel Olson to make a valid deed. In my opinion the evidence conclusively shows him to have been incompetent under the rule announced in the opinion of the majority. No useful purpose will result from a discussion of the evidence on which I reach my conclusion.