193 Ky. 72 | Ky. Ct. App. | 1921
Opinion of the Court by
Affirming.
Zachariah Jolínson, a resident of Floyd county, died intestate during the month of August, 1919. He was survived by five children, Nancy J. Slone, Julia Bingham, Emma Stephens, Joseph Johnson and L. M. Johnson. About four years prior to his death he conveyed his farm, located in Floyd county and consisting of about one hundred acres, to his two sons, Joseph Johnson and H. M. Johnson. Prior to that time he had sold off half the timber and all the minerals underlying the farm. The deed to his two sons acknowledged a consideration of $100.00, half of which was paid by each of the grantees. The deed contained the following provisions:
“It is, however, expressly understood that there is one acre, including the house where grantor now lives, excluded from this conveyance and not conveyed to grantees herein, so long as grantor lives, but after said grantor’s death, the acre excluded is to go to grantees herein. The grantor reserves the right in this conveyance to control the whole of said land so long as he lives,*73 then, the fee simple title to the whole tract, including the one acre, is to fall to the said L. M. Johnson and Joseph Johnson, their heirs and assigns forever. The grantees are also to take care of the grantor during his natural life by furnishing food, clothes and other necessaries of life, in ease they cultivate and have the use of said land. ’ ’
After the death of Zachariah Johnson the three daughters brought suit against their brothers to cancel the deed on the ground of mental incapacity, fraud and undue influence. The defendants filed an answer denying the allegations of the petition. On final hearing the chancellor denied plaintiffs the relief prayed for, and they appeal.
The evidence for plaintiffs is as follows: Julia Bingham testified that she was on good terms with her father, and that her financial condition was bad. She knew of no reason why her father should have disinherited her by deeding all the land to defendants. The condition of her father’s health was pretty bad, although he was able to get about and do some work. Her father was an unlearned man and her brothers were young, active men, in good health, and Lem had a good education. It did not cost very much to keep her father. Jasper Slone, husband of Nancy J. Slone, testified that the condition of Zachariah Johnson’s health on September 4, 1915, was pretty bad. He was not particularly acquainted with the price of land in that vicinity, but was of the opinion that it was worth from $50.00 to $100.00 per acre. On being asked if Joe Johnson or Lem Johnson had any influence with their father, he replied: “Yes, sir, it seems that they did.” He further stated that Zachariah Johnson, when he had any business to transact, relied on the defendants.- Lem Johnson and Joe Johnson were both strong, intelligent men. Bee Johnson deposed that the timber and land together were worth about $1,200.00. Joe Johnson and Lem Johnson were both strong, intelligent men. On cross-examination he stated that the health of Zachariah Jonson was tolerably good on September 4, 1915, the day the deed was executed. He never at any time knew of Zachariah Johnson’s being unable to transact his own business and to take care of it. Considering the fact that the minerals and half the timber had been sold, he was of the opinion that the land was worth about $400.00. Joseph N. Harris, clerk of the Floyd county court, stated that he wrote the deed and took the acknowledgment. Zachariah Johnson asked him to write the
On the other hand, Joseph Johnson testified that, at the time the deed was made, he was living with his father. His father had no mental infirmity when the deed was made. The deed was written by Joe Hargis at his father’s direction. Neither he nor his brother suggested or attempted to influence their father to make the deed. His father was an active and alert man. Harris wrote the description in the deed from his father’s dictation. He and his brother, Lem, each paid their father $50.00. He and his brother were also to take care of their father and give him all the necessities of life. This they did. On cross-examination he stated that he sold his half interest in the farm to his brother for $650.00 Each of the plaintiffs had farms on which to support themselves. During the last few years of his life, his father was engaged in truck gardening and was able to bring his produce to the market. The evidence of Lem Johnson was substantially the same as that of his brother. His father was about sixty-three years old when he died. He and his brother were liable for their father’s- support, and upon his father’s death his funeral expenses, amounting to $105.50, were charged to them. He paid $650.00 for .his brother’s half of the farm, but that was a high price. He paid this sum because he wanted to live there. Yin-cent Whitaker testified that the farm in question was .awfully rough. He was acquainted with Zachariah Johnson at the time the deed was executed, and his mental • condition was good. Zachariah Johnson drove a wagon carrying watermelons to town, and he knew how to attend •to business' transactions. He never saw anything in his conduct or manner-to indicate that he was not able to take .care, of himself in a business matter.
It is also insisted that some of the denials contained in the answer are not sufficiently definite and specific. While this may be true, yet as there was no demurrer nor motion to make more specific, and evidence was heard on the issues made, and the case was tried on its merits and judgment rendered in favor of defendants, plaintiffs cannot now complain of such technical defects in the answer. Clark v. Isaacs, 182 Ky. 391, 206 S. W. 606.
Another contention is that the finding of the chancellor is not sustained by the evidence. In support of this position it is argued that the confidential relations existing between the parties, considered in the light of evidence that the grantor was old and infirm and lived with the grantees who were active and intelligent men, and the consideration for the conveyance was inadequate, im-’ posed on the grantees the burden of showing the fairness of the transaction. Even if it be conceded that the evidence offered by the plaintiffs on these points was sufficient to raise-the presumption of undue influence, it seems to us that the evidence, considered as a whole, was sufficient to rebut this presumption. Though some of the witnesses for plaintiffs spoke of the grantor as being old and feeble, the fact is, he was only fifty-nine years of age when the deed was executed and had sufficient physical strength to gather produce and frequently drive a farm wagon containing such produce over a mountain road to Prestonsburg and back, a distance of from fourteen to sixteen miles. Furthermore, there was no evidence of
Judgment affirmed.
