170 Ind. 498 | Ind. | 1908
Appellees, the heirs of Catherine Faylor, deceased, commenced this suit in the Wells Circuit Court to set aside a deed of conveyance executed by her on April 1, 1901, whereby she conveyed to appellant certain real estate situated in Wells county, Indiana. The complaint is in four paragraphs, to each of which appellant demurred for insufficiency of facts. This demurrer was overruled, and proper exceptions reserved. Answer, the general denial. Upon the issues formed a trial was had in the Wells Circuit Court before a jury, which resulted in a verdict for appellees. Appellant, upon his application, was awarded a new trial as a matter of right under the,statute. The venue of the cause was then changed to the Adams Circuit Court, wherein a third trial was had before a jury, which resulted in a verdict in favor of appellees.
Over appellant’s motion for a new trial judgment was rendered upon this verdict, from which he appeals, and assigns as errors the overruling of his demurrer to each para
The third paragraph of the complaint is to quiet title, under §1116 Burns 1908, §1070 R. S. 1881, 2 Thornton’s Civil Code, §873, to the lands therein described, and the fourth is a statutory complaint in ejectment, under §1096 Burns 1908, §1050 R. S. 1881, 2 Thornton’s Civil Code, §853, to recover possession of the lands in controversy, and for damages for the detention thereof. The sufficiency of the latter two paragraphs is not controverted by appellant.
The following may be said to be a fair statement of the facts alleged in the first paragraph of the complaint: It discloses that Catherine Faylor died intestate on July 8, 1902, leaving the appellees as her heirs at law; that on April 1, 1901, and also at the time of her death, she was the owner' of the lands described in the complaint, being 216 acres, 123 of which she held in fee simple and a life estate in the remaining ninety-three acres; that the value-of the 123 acres at the time of the execution of the deed in question is averred to have been $12,000; that on said April 1, 1901, the defendant procured said Catherine Faylor to execute to him a pretended deed containing covenants of general warranty purporting and pretending to convey to him said described real estate, situated in Wells county, Indiana; that at the time said Catherine Faylor made the pretended deed in question she was about eighty-five years old and was greatly enfeebled and debilitated both in mind and body; that she was blind and paralyzed, and was in such a condition mentally that she was of unsound mind and incapable of comprehending the nature of a contract and deed; that the sole and only consideration for said deed was that the defendant should leave to said grantor, Catherine Faylor, the exclusive possession and use of the brick dwelling-house situated on the premises conveyed, together with the garden and appurtenances to said dwelling, for and during her natural life; that the defendant was to
The second paragraph, after averring that the plaintiffs are the heirs of Catherine Faylor, who died intestate on July 8, 1902, alleges that said Catherine Faylor, on April 1, 1901, was the owner of the lands described in the complaint, being 216 acres, 123 of which she owned and held in fee simple, and that this tract was valued at $12,000, and the remaining ninety-three acres she held as a life tenant; that on April 1 she executed a pretended deed purporting to convey all the aforesaid described lands to the defendant; that at the time said Catherine made this pretended deed to the defendant she was about eighty-five years old, was blind and paralyzed, and was greatly enfeebled and debilitated in both mind and body, so much so that she was of unsound mind, and was incapable of comprehending the nature of a contract or deed; that the mental condition of said Catherine Faylor was well known to the defendant at the time he procured the pretended execution of said deed and possession of said real estate; that he, knowing said facts, for the purpose of procuring possession of said real estate, and of cheating and defrauding said Catherine Faylor out of
Consequently in such cases the fact that the party dealing with the non compos mentis had knowledge of his mental incapacity is material upon the question as to whether he is entitled to be placed in statu quo before there can be avoidance of the deed in question. This court, in Thrash v. Starbuch, supra, affirmed in effect that restitution was not necessary in an action in which it is alleged that the grantee took the conveyance in controversy with knowledge of the mental condition of the grantor and obtained therein an unconscionable advantage. See, also, Judd v. Gray (1901), 156 Ind. 278.
In considering the first paragraph of the complaint on the question of appellant’s knowledge of the mental inca
It follows, and we so adjudge, that the first paragraph of the complaint is insufficient in failing to show therein an offer by appellees to make restitution to appellant, and thereby place him in statu quo. This was essential, in the absence of a showing under the allegations of this paragraph that appellant had knowledge at the time of the execution of the deed by the grantor that she was of unsound mind. See Boyer v. Berryman, supra; Judd v. Gray, supra; Rohrof v. Schulte, supra; Burden v. Burden, supra.
Consequently, if we consider the paragraph in question bad upon the theory of fraud, it cannot be sustained upon any other. Copeland v. Summers (1894), 138 Ind. 219, 226.
We are not to be understood as holding that shorthand notes of an official stenographer, embracing the evidence of a deceased witness upon a former trial of the case, are not competent to be employed in proving, in a subsequent trial of the same cause, what the testimony of such witness was. We conclude that the trial court, under the circumstances, erred in not permitting Mr. Eichhorn to testify in regard to the evidence of the deceased witness given upon the former trial of this cause.
Other questions relative to alleged errors are discussed by appellant’s counsel, but it is not apparent that these will
Judgment reversed, with instructions to the lower court to grant appellant a new trial and sustain the demurrer to the first and second paragraphs of the complaint, with leave, if desired, to amend the complaint and reform the issues in the case.