79 Ind. App. 261 | Ind. Ct. App. | 1923
Suit by appellee against appellant to cancel deed for fraud. Complaint in two paragraphs. The material averments of second paragraph are: On November 16, 1918, appellee was the owner in fee, and in possession, of certain real estate of the value of $1,000; was a man sixty-six years of age, and wholly inexperienced in business matters, having for more than twenty-five years been a railroad section hand; that he had no family, his wife, who had borne him no children, having recently died; “that the loss of his wife and only companion preyed upon his mind,” and that “by reason of his advanced age, enfeebled condition, and the sorrow and worry and distress of mind over the decease of his wife,” he was not “competent to transact business of any kind; that, in addition to said worry, distress of body and mind, as aforesaid, he was sleepless at night, very nervous and debilitated generally in body and mind, and by reason of all said facts and conditions was incapable of comprehending the nature and import of general business, and especially any disposition of his real estate;” that appellants were husband and wife, lived just across the street from the home of appellee, and were related to appellee by marriage, in that appellant Mary Webster was a sister of appellee’s deceased wife; that because of the relationship appellants and appellee were much together, and, as appellants well knew, appellee reposed the utmost confidence in them; “that on said date and.while so incapacitated, as aforesaid,” appellants “unduly, purposely and wilfully exercised their confidential and relation influence over him, well knowing” his said mental and physical condition, and did “purposely and designedly and with fraudulent and false purpose of cheating and defrauding” appellee out
A motion to strike out parts of the complaint was by the trial court overruled, as were separate demurrers to each paragraph of complaint. Appellants’ answer consisted of a general denial, and a special answer which was but an argumentative denial. Trial by the court resulted in a finding and decree for appellee.
Alleged errors properly assigned, and not waived, are: (1) Overruling demurrer to first paragraph of complaint; (2) overruling demurrer to second para-, graph of complaint; and (3) overruling motion for new trial.
It is, of course, the general rule that fraud cannot be predicated upon statements promissory in their nature, and relating to future action. Burt v. Bowles (1879), 69 Ind. 1. Representations upon which fraud can be predicated must be of an existing fact. Fouty v. Fouty (1870), 34 Ind. 433. An examination of the paragraph of complaint under consideration reveals that it is not subject to the objection made. In addition to the allegation that the promises were falsely and fraudulently made, and that the same were broken, the complaint contains averments setting forth the relationship of the parties and the confidence of appellee in the good faith of appellants because of such relationship. It is also charged in the complaint that appellee was, at the time, mentally incompetent to transact business of any kind, — was, in fact, “incapable of comprehending the nature and import of general business, and especially any disposition of his real estate,” which fact was known to appellants. It is further averred that appellants “at no time intended to perform any of said promises * * * or to pay him any valuable consideration therefor,” and that there was, in fact, a total failure of consideration. If these facts, which áre well pleaded, are true, and we must take them as true in considering the demurrer, it cannot be said that the only allegations of the complaint purporting to charge fraud consist of promises to be performed in the future. That the charge in the complaint
A court of equity will cancel a deed made by an aged and infirm person in consideration of support for life if there is the slightest proof that he was induced thereto by fraud. Sherrin v. Flinn (1900), 155 Ind. 422, 58 N. E. 549; Tomlinson v. Tomlinson (1904), 162 Ind. 530, 70 N. E. 881; Ashmead v. Reynolds (1893), 134 Ind. 139, 33 N. E. 763, 39 Am. St. 238; Lockwood v. Lockwood (1900), 124 Mich. 627, 83 N. W. 613. Courts of equity have jurisdiction to cancel, for fraud, deeds made by aged persons in consideration of support, for the reason that the agreement for the support of the grantor for life creates a continuing obligation on the part of the grantee, for the breach of which the remedy at law is not complete and adequate. Lowman v. Crawford (1901), 99 Va. 688, 40 S. E. 17. We hold that the court did not err in overruling demurrer to the second paragraph of complaint.
The only reasons for a new trial presented relate to the sufficiency of the evidence. Though the evidence is'
From an examination of the whole record, it'affirmatively appears that the cause was tried, and the decision rendered, upon the second paragraph of complaint, and that the merits thereof were fairly determined. Under such circumstances it is unnecessary for us to pass upon the sufficiency of the first paragraph of the complaint. Federal Life Ins. Co. v. Barnett, Admx. (1919), 71 Ind. App. 613, 125 N. E. 522; Vulcan Iron, etc., Co. v. Electro, etc., Min. Co. (1912), 54 Ind. App. 28, 99 N. E. 429, 100 N. E. 307; Volker v. State (1912), 177 Ind. 159, 97 N. E. 422; Town of Rochester v. Bowers (1899), 23 Ind. App. 291, 55 N. E. 235; Hauck v. Mishawaka, etc., Mfg. Co. (1901), 26 Ind. App. 513, 60 N. E. 162; §350 Burns 1914, §345 R. S. 1881.
Affirmed.