73 W. Va. 304 | W. Va. | 1913
W. E. Mooney has appealed from a decree of the circuit, court of Boone county made on the 17th February, 1912, cancelling a deed made to him by Paulina Miller conveying a tract of 397 acres of land, the grantor retaining possession during her life. The ease turns upon the grantor’s mental capacity at the date of the deed, April 11th, 1910. The consideration recited is services and labor performed, and to be performed, by Mooney for the grantor. Mooney was to maintain and take care of the grantor during her life, giving her proper care, nursing' and medical attention. Mrs. Miller was a widow, about seventy-four years of age, and by her frugality, industry and careful attention to business she had accumulated and saved a good deal of money, in addition to the tract of land in controversy. Her children had died unmarried and without issue, and her husband too had died about fifteen years prior to 1910. Mooney had been living on her place, in a house erected for him, only a few feet from her own dwelling house, for about fourteen years, nearly ever since her husband’s death. She was partially paralysed in the fall of 1909, and was in feeble health, having almost lost the use of her right arm and leg. Her power of speech was also much affected and it was often difficult for her to make herself understood. Her counsel urge that, at the time she executed the deed, she had not sufficient mind to know what she was doing. She lived at QJiap, Boone county, about nine miles from Madison. The deed was executed at the Martin Hotel in Madison, in the presence of P. C. Leftwieh, M. A. Byrnside and W. E. Mooney, while she was on her way to a sanatorium in Louisville, Kentucky. Mr. Leftwieh had been her attorney-at-law and her legal adviser for several years. Dr. R. L. Hunter and Mr. Mooney accompanied her to Louisville, and placed her in the care of Dr. Pope, in his Sanatorium, where she remained about five months. She was then brought back to her own home in Boone county by Mr. Leftwieh. About twenty witnesses have testified for plaintiff that, in their opinion, she was not competent to make the deed; and about twelve for defendant, that she was competent. That she did execute the deed is abundantly proven by a number of
It would require unnecessary time and labor to detail all the testimony, or even the material parts of it, and it would have no other effect than to encumber'the reports with useless matter which, in all probability, would never be read by anyone'other than the attorneys of record who are already familiar with it. Cases of this kind seldom serve as precedents; they depend upon their own peculiar facts and circumstances,- and rarely involve any new or unsettled principles of law. Because of their nature they can never, except in the rarest instances, serve as precedents. Therefore,- it is enough to say; that we
It is proven, and not denied, that after her husband’s death, she solicited Mooney to come and live on her place and take care of her and her property, stating that she had tried to get certain ones of her relatives to do so and they had refused, promising to deed Mooney her land to take effect at her death; that in consideration of her promise he came, and has taken care of her and her farm, and has also assisted in the management of a small mercantile store which her husband had conducted and which she continued to conduct after his death. In the deed she was careful to retain a life estate in the land; and, in executing it, we think, she was carrying out her agreement made with Mooney years before. She is proven to have had a strong will and much business ability before she was partially paralysed; and while it must be admitted that her mind, at the time she executed the deed, was not as vigorous as it had been, still we do not think it was impaired to such a degree as to destroy her will and incapacitate her to make a deed.
The deed was not turned over immediately to Mooney, but was retained for a while by Mr. Leftwich; and counsel for Mrs. Miller insist that the essential element of delivery is not proven. Mr. Leftwich explains, satisfactorily, why the deed was not handed to Mooney at once. He says that Mrs. Miller
Mooney has been rendering services in consideration of the deed for fourteen years or more; and the grantor can not now prevent him from carrying out his contract to take care of her in the future, ánd then avoid her deed on the ground of failure of consideration. She can not thus take advantage of her own wrong.
This case is very similar to the case of Black v. Post, supra; and it is controlled by the principles announced in that case and in Delaplain v. Grubb, supra, and Teter v. Teter, 59 W. Va. 449.
The decree appealed from will be reversed and a decree entered here dismissing plaintiff’s bill.
Reversed and Bill Dismissed.