65 W. Va. 476 | W. Va. | 1909
On the 11th day of January, 1905, John Towner entered into a contract, by which he agreed to pay his wife, Maggie Towner, $1,000.00, without interest, in installments 'of $100.00 each, the first of which was to become due on the 15th day of December, 1905, and the others on the 15th days of each succeeding December, until all should be paid. The agreement further provided for a separation of the parties. On the 14th day of January, 1905, Towner executed a deed of trust on his farm containing 79 acres and 40 poles, to secure the payment of said sum, and made L. W. Chapman trustee therein. The trustee published a notice of a sale of the property, to be made on the 31st day of March, 1906, default having been made in the payment of said first installment. Thereupon Towner presented, in the circuit court of Doddridge county, his bill in equity against Maggie Towner and the trustee, praying an injunction to prevent the sale, setting up fraud in the procurement of the deed of trust and his mental incompetency to execute the same, and prayed cancellation thereof. An injunction, in conformity with the prayer of the bill, was awarded on the 16th day of March, 1906. At May rules, 1906, defendant, Maggie Towner, filed her demurrer and answer to the bill. Depositions having been taken, the case was submitted to the court, on the 17th day of May, 1907, -when a decree was pronounced, canceling, annulling, and setting aside the deed of trust and perpetuating the
The first assignment of error is predicated on the overruling of the demurrer. Under this heading it is said (1) the bill does not sufficiently charge insanity; (2) it does not sufficiently charge the exercise of undue influence; (3). it is multifarious; (4) the charge of fraud is insufficient; (5) it is unintelligible and uncertain, allegations purporting to charge matters resting in the knowledge of the plaintiff and those , stated to be upon information and belief being so intermingled as to be inseparable. The bill charges that prior to the 16th day of January, 1905, on the-day of-, 1904, plaintiff’s mind became affected, and he was, by legal proceedings, committed to an insane asylum where he remained as a patient and inmate until December, 1905. It further says that, while his mind was thus affected and weakened, ‘die was wholly unable to transact business, but had no power to exercise mental thought or consideration.” These charges or statements are substantially repeated in the bill. We think they amount to a sufficient allegation of insanity. . The bill says the plaintiff had been adjudged insane and committed to an asylum. In the absence of any showing to the contrary, it is presumed that his insanity continued. Eakin v. Hawkins, 52 W. Va. 124, 129. There is no intimation of restoration to sanity. The allegations as to undue influence are somewhat lacking as regards specification of improper conduct on the part of the defendant. For the most part, they are general, saying she obtained advantages over him, by her power and persuasion, while he was mentally weak, in fact, insane, and that he was persuaded and induced by his wife, while in that condition, to execute the deed of trust. In other places, it charges generally that she cheated, defrauded and robbed him of his money and property, while he was absolutely insane and while she knew him to be so and susceptible to her influence as a child would be. Whatever may be said of this as a defect, or whether it is one or not, a sufficient ground for relief, sustaining the action of the court, is found in the charge of insanity. The charge of multifariousness is based on certain clauses, imputing desertion, abandonment and "other improper conduct to the defendant. These clauses, however, do not purport to state a cause of action. No prayer for relief is predicated upon them.
There is nothing in the complaint founded on alleged failure to give time for an answer after the overruling of the demurrer. As has been stated, the answer was filed at rules. • The statute permits this, and, as it is found in the record and depositions were taken and filed, it must be treated as in the case and raising the issues, • although it is not mentioned in any decree, nor replied to. Nor is the decree reversible for failure to recite the cause was heard on the answer, or for want of a general replication. . As process was issued and executed, the bill and answer filed and depositions taken, and sufficient time elapsed to mature the cause for hearing, it is presumed it was regularly matured for hearing, nothing to the contrary appearing on the record. Riggs v. Lockwood, 12 W. Va. 133; Linsey v. McGammon, 9 W. Va. 154. If any aid to this presumption is necessary it is found in the recital, saying the cause was heard "upon all former orders, decrees and proceedings” had therein. This harmonizes with the last clause of section 4, chapter 134, Code, saying "Nor shall a decree be reversed at the instance of a party . who has taken depositions, for an informality in the proceedings, when it appears that there was a "full and fair hearing upon the merits, and that substantial justice has been done.” No decree can be reversed for want of a replication to the answer, if the defendant has taken depositions as if one had been filed. Code, ch. 134, section 4; Chalfants v. Martin, 25 W. Va. 394; Richardson v. Donehoo, 16 W. Va. 685.
As we have said, the adjudication of insanity raised a presumption against the defendant. Ordinarily there is a presumption of sanity, placing the burden upon the party attacking the conveyance on the ground of insanity; but, if the grantor has been previously adjudged insane, or general mental derangement established by proof, it is presumed the infirmity continued and the burden is cast upon the party endeavoring to uphold the deed. Neither presumption is conclusive. Either can be overthrown. Besides, some insane persons have lucid intervals, and
No doubt the testimony of the witnesses is more’or less colored or affected by prejudice, feeling and bias. Members of the family are arrayed against each other. The wife and two daughters testify on one side, the husband and one son and two brothers on the other. Much of the evidence is contradictory, but, in respect to some matters, the witnesses are in general agreement. A great deal of it, relating to domestic troubles and moral imperfections and misconduct, on the part of members of the family, need not be noticed, since it has no bearing on the real issue.
In our opinion, the evidence offered to prove mental capacity is not sufficient. It lacks clearness, and is confined to specific acts. It goes rather to particular acts than to the mental state and condition of the plaintiff. That his mental powers were seriously impaired is beyond doubt. He had been twice committed to an asylum for the insane. At the time of the execution of these papers, he had not been discharged from the second commitment. His son had brought him home temporarily on a '
In her answer, the defendant attempted to set up a claim for the care and maintenance of certain of the children, which is not specifically mentioned in the decree. As it is a purely legal demand, foreign to the real substance of the bill, the court below ignored it in the decree; but, though improperly, it was put into the cause, and should have been eliminated by the final decree or otherwise. Sprinkle v. Duty, 54 W. Va. 559. The omission of the saving clause which should have been inserted must be corrected here by a modification, but without costs to the appellant, since she induced the error and failed to ask the court below to correct it. Frye v. Miley, 54 W. Va. 324; Sprinkle v. Duty, cited.
For the reasons stated, the decree; modified as aforesaid, will be affirmed with costs to the appellee, the party substantially prevailing.
Modified and Affirmed.