97 Va. 143 | Va. | 1899
delivered the opinion of the court.
This is an appeal by Charles H. Todd from a decree of the Law and Chancery Court of the city of Norfolk setting aside as fradulent and void eight deeds made by Lucinda Todd to her son, the appellant, conveying to him the entire real estate owned by her. The deeds were attacked by appellee, Josephine Sykes, a half sister of appellant and a daughter of Lucinda Todd by a former 'marriage, and the grounds upon which the attack was made were that the deeds were without consideration, and were obtained by the grantee by fraud, deceit and undue influence. Three of the deeds are dated April 30, 1895, were acknowledged June 5 of the same year, and admitted to record July 20, 1895. The other five bear date and were acknowledged July 16, 1895. Lour of them were admitted to record July 20, 1895 \ and the other July 23, 1895.
The five deeds dated July 16, 1895, convey various pieces of land therein described, for an aggregate consideration of $5,580.
The appellant, Chas. H. Todd, the defendant in the court below, filed his answer denying under oath the various allegations of fraud made in the bill, and alleging that he paid his mother in cash for all of this property except the Chapel Lane lot, which he alleges was originally paid for with his money at the time it was conveyed to his mother, he being the real purchaser thereof, and except that lots Nos. 61, 63 and 67 on avenue B in Huntersville were originally purchased by and conveyed to him, and were subsequently conveyed by him without consideration to his mother, he not wishing to hold them in his own name. To this answer the plaintiff in the court below replied generally.
Sixteen witnesses were examined for the plaintiff, and twenty-four for the defendant, and upon the bill and answer and numerous exhibits therewith, statements and agreements filed in. the record, and on the depositions of the witnesses, the court below set aside all of the deeds on the grounds stated.
In considering this case upon its merits we may, as did the court below, leave out of consideration the various exhibits produced to prove that appellant had been removed from the office of justice of the peace of the city of Norfolk by the council of the city; that he had been indicted for selling liquor to minors, for collecting a fine and failing to return the same, and for failing to pay into court a fine imposed by him; that he was reported to the Corporation Court of the city of Norfolk by the grand
We leave out of consideration also the declaration of Mrs. Todd proven as to force or undue influence, used by appellant in securing the conveyances of the property to him, but it is proper to consider her statements as evidence to show her state of mind and condition at the time she executed the conveyances. Waite on Eraud. Con., sec. 206 and note.
The burden of proof in this case is on the plaintiff to prove the fraud and undue influence alleged in the bill, and such proof must be clear and convincing, but if indicia of fraud be proved so that fraud may be presumed from the circumstances and condition of the parties contracting, or if it is proved that the parties stood in an intimate and confidential relation, one to. the other, either as parent and child, or in any other way, the burden of proof shifts to the defendant, and he is obliged to repel by strong and clear evidence the presumptions of fraud and undue influence arising from the circumstances of the transaction and the relations of the parties, and in such cases he must prove the truth of the defence set up in his answer. Fishburne v. Ferguson, 84 Va. 111; Hickman v. Trout, 83 Va. 491-2; Waite on Fraud. Con., secs. 225 and 271; Bump on Fraud. Con., secs. 249, 256, and note to 67; and Francis v. Cline, 96 Va. 201.
If from the relations of the parties and the surrounding circumstances a doubt is thrown around the payment in good faith
It is not necessary to prove fraud by direct and positive evidence. Circumstantial evidence is not only sufficient, but in most cases is the only proof that can be adduced. Armstrong Sc. v. Lachman, 84 Va. 728; Moore v. Ullman, 80 Va. 311; Hickman v. Trout, supra; Saunders v. Parrish, 86 Va. 592; Ferguson v. Daughtry, 94 Va. 308; Hazlewood v. Forrer, 94 Va. 703; Francis v. Cline, supra.
A transaction may of itself and by itself furnish the most satisfactory proof of fraud, so- conclusive as to outweigh the answer of the defendant and even the evidence of witnesses. Jones v. Magruder, 87 Va. 360, 379, and authorities cited; Hazlewood v. Forrer, supra.
Among the indicia of fraud as laid down by the authorities are false admission of receipt of consideration, absence of means in the grantee, his failure to produce evidence supposed to be within his reach, unusual mode of payment, want of clear proof, etc. Bump on Fraud. Con., sec. 66 et seq; secs. 42, 63, and 64 and notes; Hickman v. Trout, supra.
^Relationship alone is not a badge of fraud, but calls for close scrutiny and strengthens presumption arising from other circumstances. Waite on Fraud. Con., sec. 242; Bump on Fraud. Con., sec. 67; Saunders v. Parrish, supra.
We cannot undertake to review all the testimony of the various witnesses examined in this ease. In fact it would serve no good purpose to do so. The evidence fully proves the following facts: That the grantor in the deed attacked was the mother of the defendant, the grantee, over 70 years of age; that her son, at the time the deeds were executed, lived with her; that they
As we have seen, the deeds in question were executed in April and July, 1895, a short time before the grantor’s death in September following. ■ They conveyed all her real estate to her son, who, as her heir and under her will, would in the course of nature have become the owner of one-half of it in a short while, without the payment- of one dollar; yet in his answer he alleges that he paid her in cash for it (except the Chapel Lane lot and the three Huntersville lots). The total consideration thus alleged to' have been paid was, as shown by the deeds, the sum of $6,330.
The evidence shows clearly such a state of circumstances surrounding the transaction, and such a condition and relation existing between the parties as justifies, indeed demands, the strictest scrutiny, and raises irresistibly a presumption of fraud and undue influence, and shifts the burden of proof to the defendant, requiring him to establish the good faith and honesty of the transaction by clear and strong proof. He swears in his answer to the bona fides of the transaction, and that he paid cash for all the property except that on Chapel Lane, and lots 61, 63 and 67 in Huntersville, which he claimed belonged to him, yet we shall presently see that his own evidence is directly in conflict with his answer, and, if it is to be believed, shows the most remarkable fact that he paid not only the aggregate consideration for all the deeds but largely in excess thereof.
In his answer he says that the Chapel Lane property was originally paid for with his money, and that he paid for examining the title. The only proof to sustain this allegation is contained in the testimony of his witness, Midgett, who says that he heard Mrs. Todd say that this lot had been bought by her with money he1 (her son) had given her for that purpose, and that it was on July 10, 1895, that she told him this as well as at other
It is perfectly clear that the testimony of this witness is wholly irreconcilable with the answer of the defendant which it directly contradicts, and, moreover, is utterly irreconcilable with itself and not worthy of belief. Moreover, defendant’s answer is directly contradicted as to the Chapel Lane property by an alleged receipt of Mrs. Todd, dated April 25, 1895, introduced by the defendant, which is in his own handwriting, and states that $2,700 was the consideration for the property mentioned in the three deeds of April 30, 1895, including the Chapel Lane property. He introduces two witnesses to prove that this receipt is genuine, and that they saw him pay $2,000 on account of this very property, which in his answer he swears he never paid his mother for at all; and by one of these witnesses he seeks to pi’ove that when he showed witness this receipt he said to witness that he had made an investment and bought property from his mother, and by his witness (Midgett) that he saw him (defendant) pay his mother $700, the balance for this very property.
"What has been said about the Chapel Lane property applies-equally to the three Huntersville lots for which he stated in his answer he paid his mother nothing, because they belonged to him, and, in addition, he does not even attempt to prove the allegation of his answer that these lots were originally conveyed to him, and afterwards conveyed by him to his mother without consideration; nor does he attempt to sustain the allegation of his answer that he paid for the Chapel Lane property when originally
A brief review of the testimony introduced by the defendant to show that he paid his mother the $2,700, the aggregate of the consideration for the three deeds of April 30, 1895, will show that it is not only irreconcilable with the allegations in the defendant’s answer, but is unworthy of belief. As we have seen, Midgett testifies to the payment of the $700 as^a balance for the property embraced in these three deeds, as to whose testimony on this point we have no occasion to comment further. The other two witnesses who attempt to show that the $2,000 was paid by defendant on account of this property are so irreconcilably in conflict with the sworn answer of the defendant and the other circumstances of this case that the conclusion that they are testifying falsely is irresistible. One of these witnesses, Hawkins, swears he saw defendant take the money from his safe, while the other, Du Pass, saw no safe. Hawkins saw defendant count the money at his desk, while Du Pass says he had a big table and counted the money on the table. Hawkins says that when he went into the office, Brownstein and Du Pass were both there, and that all three of them stood up and watched the counting, while Du Pass states that he did not see Hawkins in the office at all, and that Brownstein was not there until after the transaction was over; that when he (Du Pass) went into the office he took a chair. Hawkins says that the defendant wrote a l’eceipt in the presence of all of them. Du Pass says the receipt was not written while he was there. Hawkins says that after the money was paid, all went out of the office, and Du Pass and Mrs. Todd engaged in a conversation, while Du Pass states that Mrs. Todd left by herself while he was still there, and that he had no talk with her, as he was not acquainted with her, and that Brownstein did not come in until after this. Brownstein is
This brings us to the consideration of the proof of the payment of the sums named in the five deeds dated July 16, 1895, which amount to $5,580. The evidence introduced by the defendant to prove this payment is the alleged receipt dated July 10, 1895, for $1,580, sought to be established as genuine by the witness Midgett, and Lavinda Clark and E. M. Quidley were introduced to prove the payment of the remaining $4,000 in cash to Mrs. Todd, and the delivery by her of the deeds to the defendant.
Midgett swears that he saw defendant make out this receipt and Mrs. Todd sign it on July 10, 1895, but that no money was then paid; therefore the only proof of the payment,of $1,580 is the receipt itself, which is attacked as a forgery. Plaintiff’s witness, Hare, for a long time teller of the Bank of Commerce, who knew Mrs. Todd’s signature well, declares it to be a.forgery, and defendant’s own witness, Berebee, called to prove its genuineness, pronounces it' doubtful, and says he would not now pass or accept it as genuine. There can be no doubt that the receipt is a forgery, or that the money named therein was never paid to Mrs. Todd, for from the testimony of defendant’s own witnesses, taken in connection with his answer, no such amount could have been paid. If nothing was paid for the Chapel Lane property and the three Huntersville lots, the total consideration for all the deeds, as we have seen, was only $6,330. Of this sum, according to Midgett, Du Pass, and Hawkins, $2,700 had been paid to June 10, 1895, so that only $3,630 remained unpaid, and according to witnesses Clark and Quidley, $4,000 was subsequently paid, leaving nothing due Mrs. Todd, but actually overpaying her $370, without including the $1,580, alleged to have been receipted for by Mrs. Todd on July 10, 1895. Therefore, the answer of the defendant and the evidence he adduces of the payment for the consideration of these deeds presents the anomaly that if his evidence is to- be believed, his sworn answer is false,
Now as to the proof that the $4,000 was paid, testified to by “ Lou ” Clark and Quidley—although, if the other witnesses are to be believed, no such amount was due Mrs. Todd: According to the testimony of these'witnesses the $4,000 was paid to Mrs. Todd at night, and at her home in Norfolk. Quidley, a man having no local habitation and often found in the city jail of Norfolk, and repeatedly before the Police Court for misconduct, is a companion of the defendant. He cannot tell the exact date at which the $4,000 was paid, but thinks it was somewhere in the latter part of July, while the deeds for the property were put on record July 16. He tells, however, with great particularity •that the defendant counted out the money in piles of $100 each, until he got ten piles, and he then put the ten piles together, making $1,0.00, and continued to count until he counted $4,000, and Mrs: Todd took the money and put it under the bed. “ Lou ” Clark (colored) could not tell whether the money was in one dollar bills or two dollar bills. She says that when she left, the money, as counted out by the defendant, was still on the table, and that Quidley left before she did. Quidley testifies that the defendant had the money wrapped up, he thinks, in a piece of paper, and a strap around it, in two bundles, while Lou Clark says the money was “ loose ”—“ it was in nothing—“ was not wrapped up,” and these statements she reiterates, and says that the defendant took the money out of his pocket, a statement hard to be believed, as the money could not have been in smaller bills than $100 each, unless the pocket from which it was taken was of greater capacity to carry money than is usually found about one’s clothes. Although Quidley had talked with the plaintiff about this suit, knew what the suit was about, expected to be a witness, yet he neither mentioned to her nor to any one else anything about this payment, nor did Lou Clark mention it to a living soul until she was examined as a -witness, if she is to
All the circumstances of this case corroborate fully and effectually the testimony of witnesses to the effect that about the time these deeds were obtained from Mrs. Todd she was a miserable and distressed woman; that it preyed upon her mind that she had done something wrong, and that she was stripped of all of her property by one in whom she had confided, and who had so conducted himself towards her as to cause her to believe that he would betray the confidence she had reposed in him. It is a significant fact, testified to by defendant’s witness, Nottingham, who wrote all of these deeds, that in April Mrs. Todd and her son came to his office together, gave him the data by which to write the first three deeds, and, after he had written them, Mrs. Todd and her son came back to his office together, when witness read the deeds over to her, and Mrs. Todd refused to sign them as written, and gave as a reason that “ it was a pretty hard thing for her to get clear of her property in her lifetime,” and added that “ she would not sign them that way.” Now, if her soil was to pay her the full value for her property, and had actually paid her $2,000, as he claims to have done, why should she have made this remark in his presence? It could not have been said by her that she was getting clear of all of her property in her lifetime if her son was to pay her the consideration for which the deeds were made, and had paid her $2,000 on this account. After having made this remark she left the office, leaving the deeds there, and it was more than a month after before she signed them. Why
To this is added the abundant proof in the record that at the time he claims to have paid all of this money to his mother in cash for her property, he was absolutely insolvent. He owned
Of the $8,280, and indeed we may add thereto the $1,950, making a total of $10,130, for, if we are to believe the witnesses who have testified in his behalf, this is the amount he paid his mother for this property, not one cent is accounted for, or found after her death, occurring but a short time after the receipt of this large amount of money, unless it be the $470 deposited by Mrs. Todd in bank for the benefit of herself and daughter. Ho effort is made by him to ascertain what became of this money, no surprise is expressed by him to his most intimate friends even, that this money was not found after his mother’s death. For ten years Mrs. Todd was a depositor in the Bank of Commerce, but not a dime of this money was deposited there, or in any other bank in the city. The little sum of $470 deposited by her about ten days before her death to the credit of herself and daughter was doubtless saved from her rents from her property prior to its
The defendant relies more to uphold the transactions by which he acquired every vestige of his mother’s property to the entire exclusion of his sister upon sarcastic criticism and vilification of plaintiff’s witnesses than upon his evidence adduced to sustain the transactions as bona fide. True, some of the plaintiff’s witnesses are from the lower walks of life; some of them colored, but it appears that they were intimates of Mrs. Todd and the defendant, with whom she talked freely with reference to her matters, and that the worst of them compare favorably as to character with many introduced on behalf of defendant. Some of the plaintiff’s witnesses are intelligent, and, from the character of their testimony given in this case, they cannot be justly criticised or impeached. One of them is Mrs. Todd’s' nephew, in whom she had so much confidence that by a codicil to her will dated February 5, 1895, she made him her executor, with the declared purpose that he might look after her daughter’s interest in the property. This witness and others had over and over again heard Mrs. Todd declare that it was her purpose to do as her will provided, divide her property equally between her two children. He, as well as other intelligent witnesses, testifies as to the changed condition of Mrs. Todd’s mind about the time and after the deeds were made. It is perfectly apparent that the defendant had used, as an. inducement to his mother to make a deed for her property to him, promises that he would look after and take care of the interests of his sister in the property.
The only remaining assignment of error requiring consideration, if sustained, would only affect the costs to be borne by the appellant in this case, and that is to the action of the court below in ordering its opinion filed with the papers in the cause to be printed as a part of the record. The trial judge filed with the papers in the cause his reasons for his decision, and the decree appealed from refers to it as filed in the record, which was done manifestly for the purpose of explaining his decision. This being the case,- the opinion thus referred to in the decree became a part of the record, and it was proper to copy it along with the residue of the record transmitted to this court upon an appeal taken from the decree. Leonard v. Rixey, 83 Va. 877-8; and Burton, &c. v. Mills, 78 Va. 470.
-We are of opinion that there is no error in the decree appealed from, and it is therefore affirmed.
Affirmed.