167 Mo. 135 | Mo. | 1902
Ejectment for eighty acres of land in Harrison county. Defendant Jackson claims to be the owner of the land and is in possession by his co-defendant, Oupp, who is his tenant.
Jackson, whom we will hereinafter call the defendant, by his answer states substantially that he is a man of weak mind, 70 years old, no education, living in Monticello, Illinois, and owning the land in question; that in September, 1895, one L. B. Wilson, son of the plaintiff, came to defendant’s house and with the intent to cheat and defraud him out of his land represented that he (Wilson) was the owner of large tracts of lands in Alabama, of great .value, which he would sell or trade and that those who would buy of him would make great profits; that he had learned that defendant was a man of prominence and influence in the community, and that as he was desirous of establishing a colony on this Alabama land he wished defendant to go with him and see the land with a view that on his return he would influence others to go and buy land there; that by such means he did influence defendant to go with him to Alabama and there traded 200 acres of land to him for this 80 acres in suit; that he represented to defendant that on that 200 acres of Alabama land were fifty acres of valuable timber, that lumber could be sold there for $50 a thousand, the land yielded from three to four tons of grass annually worth in the market from $10 to $15 a ton, would also yield 60 to 80 bushels of dry-ground rice per acre worth $1 a bushel, and that he had a complete record title, all of which representations were false and made with the fraudulent intent to cheat the defendant; that Wilson also proposed to defendant that if he did not care to farm the Alabama land himself he (Wilson) would take a lease from him for five years of the 200-acre tract and pay him $800 a year for rent giving him well-secured bankable notes for the same;
Upon the trial the plaintiff introduced evidence tending to show that the rental value of the land in suit was $100 or •$125 a year and rested.
The defendant’s evidence was first directed to the question of his mental capacity. This began in the cross-examination of one of plaintiff’s witnesses, a farmer living near the land in suit, who had seen defendant on his visits to Missouri to look after this farm. This witness said that in his opinion, although defendant did in fact transact his own business, he was not competent to do so. The witness said: “He was looking after his land when he was here. He made a contract for his board with my wife, paid part of it and part is not
Then defendant read on this point, depositions of several persons living in Monticello, Illinois, who had known defendant for years, as follows:
A. L. Eodgers, clerk of the county court, said: “I don’t think he is competent to transact business. I don’t think he is competent to undertake the exchange of properties or their sale or to make papers transferring real estate.” Witness stated no facts on which he based his opinion.
Erank Harrington thought he was not competent to transact business. '“A man who would take a shovel and dig up the streets for gold, I consider that is a man not being sound.”
Charles Bryden :• “I should not say his mind was strong. I should say he was not competent to do business. His conversations were incoherent. He had an idea that this whole country was inlaid with gold. . . . I do not think he would be able to comprehend the meaning and purport of a legal instrument.”
Mary J. Bryden: “I considered him queer. He was constantly talking of his expectations of finding gold. I don’t-think he had any knowledge of the real value of property. I have often said to my sons that I would not want Jacob to sell a calf for us. . . He didn’t seem to know what his
N. E. Rhoades: “I never thought he was a man of very strong mind, thought he was a little off. I wouldn’t consider him qualified to transact business such as trading, exchanging real estate and buying and selling farms. I refer to his mental capacity on quite a number of different conversations I have had, more upon this mining question than anything else.” Witness then went on to state substantially that defendant thought that gold ore existed in the soil in and around Monticello, that he thought he had discovered it in places and that if any one would back him with capital he would develop the mine. He had a rod with a ball on the end, which lie believed would indicate the presence and depth of gold ore. Witness had him to experiment with the rod, but it indicated nothing. Defendant was peculiar in his manner of buying goods at witness’s store; he would sometimes come in and look over a suit of clothes or a hat several times before he would purchase. “I should doubt very much his ability to make a careful deal if he was dealing for land. He was rather peculiar in a good many things.”
John W. Dighton: “I have thought for a good many years back that he was not responsible for his actions. His conduct is unusual. I noticed him on a good many occasions, sort of picking up gold out on our farm. Pie had a little hunting bag and used to pick up all sorts of little glittering rock and carry it off, and I was informed, though I did not see it, that he dug some holes in our woods, but I didn’t think it was altogether the work of one man. He impressed me
Dr. J. D. 'Knott: “I couldn’t say that I have had any conversation with him; have observed his conduct and demeanor some. I don’t think he was of sound mind. I don’t think he was fit to transact business. I couldn’t say that I observed anything in particular as to his ability to comprehend the extent and value of property and of general business affairs. Everything I have observed has been in a general way; I couldn’t observe anything in particular. I don’t think he was competent to make a transfer of real estate.” Witness said that he never treated defendant professionally, and that the opinion given was non-professional; had not conversed with him to any extent, and never transacted any business with him. Defendant’s idea of gold in the country had something to do with the opinion given.
M. R. Davidson, a lawyer, lived just across the street from defendant, saw and talked with him frequently. “I don’t think from my observation of his conduct and talks with him he would be competent to transact such business as you have mentioned. His ideas about the value and extent of property iñ my opinion would be very vague and uncertain.” Witness knew the defendant and his brothers and sister and visited them socially, but never had any business transaction with defendant. Defendant and his brother Henry, both had the idea that gold could be found in that country.
William P. Smith testified to a conversation he had with W. L. Wilson, in which witness told Wilson that defendant was considered to be on the weak-minded order, and that Wilson said the reason he had employed Hicks was that Hicks
Geo. Miller, former sheriff of the county in which Monticello, Illinois, is situated, stated that he did not think defendant was competent to transact business. “Have had some little transactions with him. He seems to have the opinion that gold may be found in this locality. That may have made me think he was not strong-minded. When I was sheriff I sold a piece of land of his for taxes; could not get him to understand he had to redeem it. I have found a good many people whose land was sold who were the same way. I haven’t had any deals with him. I couldn’t say as to whether he is a man who guards his property interests very close. I have sold him goods, and he was always pretty hard to trade with. Whether he wasn’t a judge of the goods, or whether he wanted to get it as cheap as he could I could not say. The question of his mental capacity has been talked of more since this trade than it was before.” H. P. Plarris: “I would not think from my observations and conversations with him that he was competent to transact business such as buying and selling real estate.” Witness had had no transactions with defendant except that defendant would come into witness’s store and buy things as other people did, in which he displayed no want of mental capacity; he was an economical man.
Dr. W. B. Campbell: “My observation would be that he was not capable of buying and selling real estate..... He seems to be just weak-minded. He has a great notion about minerals, about finding minerals in the ground. That is the ground on which I base my opinion that he is weak-minded. It might be that Mr. Jackson is right about that, but it isn’t very probable. I have frequently heard of gold being discovered just over the Indiana.line.....His weakness of mind, so far as I am able to state, is manifested by the fact- that he believes in the presence of gold in the vicinity. So far as I know he seems to be rational on all other subjects.
Dr. J. W. Coleman: “My knowledge of the man is somewhat limited in a certain sense. I have known him, as I have testified, a number of years. I have regarded him as rather a weak-minded man.....I have never examined Mr. Jackson for the purpose of ascertaining his mental condition, nothing more than a casual observation of the man. I don’t know that there is anything in his mental make-up that would prevent him from caring for his financial interests in a deal as men of ordinary prudence usually care for their business. The fact that he believes in the presence of gold in this vicinity constitutes largely but not altogether the ground upon which I base my opinion that he is weak-minded. I would judge that he is easily influenced. I never saw him put to the test. There might he a little gold in this vicinity but in the true sense there is none. I couldn’t say outside of this one thing that he is wrong.”
In addition to the foregoing depositions the following named witnesses testified at the trial on this point.
W. T. Chipps, who lives in Harrison county near this land, became acquainted with defendant on the occasion of his visits to Missouri,7 in 1894 and 1897. His estimate of the defendant was: “I wouldn’t call him a very bright man, that is my judgment. He was more of a feeble-minded man, he was not stout.”
The facts upon which this witness based his opinion were that defendant would sometimes want to fix his pasture one way and then would change to another way and did not seem to know just what he did want; and he tried to dam the branch with the brush from the hedge, which was foolish because the branch was too large. He was interested in his land and wanted to stop the washes; he made a contract with witness renting the pasture; it was a reasonable contract; no one came
John W. Smith: “I pronounced him a feeble-minded man. In my own mind I don’t believe he was capable of transacting business and making bargains.....I base my opinion on the fact that he said he was going to take in a pasture and when he would take up a subject and talk and fly off without finishing it on to other subjects just like I have seen men before now do; didn’t seem like his mind was settled fairly.”
John T. Price testified that he had a conversation with defendant when the latter came to Missouri in 1897, in which defendant having said that he formerly lived in Miami, Ind., witness asked him if he knew his father-in-law, Dr. Miller, who lived there. Defendant said he did not, but in a subsequent conversation he said he knew him very well; that Dr. Miller had practiced in his family, and then after that in another conversation he said he did not know Dr. Miller, never heard of him. “His mind wandered in every direction. . . . I would not want to testify that the man was insane, or anything of that kind at all. I don’t think he was aware of the fact that he was going from one subject to another. I don’t know whether his mind was so far gone as to be incapable of doing business. I would not state that.”
Miss Jackson, sister of defendant, testified; “For nearly twenty years my brother’s mental condition has not been so that he was really competent to attend to business at all. I have been attending to his business.”
On the other branch of the case the defendant’s testimony tended to show that L. B. Wilson and others were interested in Alabama lands under the firm name of Illinois & Alabama Land Company. That L. B. Wilson came to defendant and made representations concerning these lands. What those representations were, are thus stated in the testimony of Miss Jackson, the defendant’s sister and chief witness: “Well, he
Henry Jackson, a brother of defendant, stated that Wilson called at their house and asked for him and his brother and stated to him that ifhe was selling Alabama land, black land, rich land. Said it was very rich land, produced a great deal. . . . He said it would produce about 400 bushels of potatoes to the acre, Irish potatoes and sweet potatoes until you couldn’t rest; and beans and dry-land rice beat anything in the world pretty near, and it would raise cane to make sis hundred gallons to the acre. Said it was splendid timber on the land. There was all kinds pretty near except sugar tree — • black walnut, hickory, bur oak, white oak, black oak, chinquepin. And this black oak was very large, hickory was splendid. He said the price would run from fifteen to twenty dollars an acre along there.” Then the witness states that they went over to where defendant was: “Well, the conversation was with brother Jacob more and the same they said to me, stating about the land you know and what it would produce and so on, this dry-land rice, corn and grass and oats and sweet potatoes and Irish and sugar cane (they called it ribbon cane), that on an acre you could make six hundred gallons to the acre.”
There was testimony on the part of defendant also to the effect that on the strength of these representations the defendant concluded to go to Alabama with Wilson to look at the lands and invited one of his neighbors, James Houselman, to go with him, agreeing to pay his expenses. The party were to
Defendant’s testimony also tended to show that on the next day, or shortly after, he returned the papers Hicks had left with him, including the deed to the Alabama land, to Hicks, but Hicks refused to receive them and sent them back and they were passed to and fro between tire parties in the mails. Defendant never sent the deed to Alabama to be recorded, never paid taxes on the land, and it was sold for taxes and afterwards, in 1897, the record title still being in Wilson, it was sold under execution against Wilson by the sheriff in Alabama. The deed to Wilson of the Alabama land shows that he paid $500 for it. There was also some discrepancy in the dates which indicated that Wilson did not obtain a deed to the Alabama land until October 29th, whereas the exchange of deeds on the occasion of Hicks’s visit occurred on October 26 th..
On the part of plaintiff the testimony was to the effect that when the party got to Alabama the defendant and his friend, Househnan (who was a neighbor of his in Monticello, Illinois, sixty-one years old and a fruit-grower by occupation),
The plaintiff’s testimony also tended to show that no representations were made as to the character of the Alabama land except in a general way, that it would produce corn, oats and cotton, and almost all the products of land in the north. The assessor of the county in Alabama where the land is situate testified that it was worth $5 an acre, and that it and lands
The court found for defendant on the issues tendered in the answer, and rendered a decree cancelling the deed from defendant to L. B. Wilson and the deed from the latter to the plaintiff, and that defendant was entitled to hold possession of the land and that plaintiff pay costs, etc., from which decree the plaintiff appeals.
We have been compelled to go through the evidence in this record and make extracts from it of unusual length for the reason that the case must turn rather on questions of fact than of law, for if all the propositions of law contended for by the learned counsel for respondent be correct, still if the evidence does not sustain the findings as to the facts, the principles of law invoked do not justify the decree.
Of course, if a man has not sufficient mental capacity to make a deed, the deed he attempts to make will be set aside. And it is true, as contended for respondent, that one may have mental capacity to make a will, when there is no overreaching mind to contend with, and yet be incompetent to deal with an adversary mind in a contract. [Martin v. Baker, 135 Mo. 495.] But if in making a will the weakened mind, though not incompetent to act alone, is overpowered by a stronger, the will can not stand. The making of a will is the act of one mind, whereas the making of a deed is the coming together of two minds, each ordinarily seeking its own advantage. It is in
Now, what does the evidence of mental incapacity in this case amount to ? At most it is mere opinions of non-experts founded on facts from which no such conclusions can be legitimately drawn. The most of them rest their opinions on the fact that the defendant believed that in and around Monticello, Illinois, gold ore >pould be found, a belief in which his brother, Henry, whom no one intimated was weak or unsound in mind, shared. Two of the witnesses thought that it was evidence of weakmindedness for a man to attempt to- stop the injury to his land from the washing of a branch, by putting brush from a cut hedge into the branch. One founded his opinion on the fact that when first questioned, defendant had no recollection of a man whom he had known when he lived in Indiana, how'many years ago was not shown, that he after-wards recollected him well and afterwards again said he did not recollect him. Another thought it foolish to plan his pasture one way, and then change to another. None of them ventured to say he was of unsound mind, nor would all of them say he could not contract ordinary business. The fact is he did transact ordinary business, came to Missouri alone, attended to his farm and made discreet contracts in relation to it. The opinions were generally qualified to the effect that he was not of sufficient intelligence to deal in real estate, buying and exchanging farms, or to understand the effect of a legal document. The business of buying, selling and exchanging real estate and understanding the effect of legal documents connected with such business, requires, in the opinion of some people, so much intelligence that a witness might with very
Nor does the defendant’s evidence support the allegations of fraudulent misrepresentations. Those representations related to what the Alabama land was capable of producing, evidently a matter of opinion, and not shown by the evidence to have been unwarranted. The evidence does not show that it was represented that the land had produced but that it could produce the articles mentioned in abundance. Representations of that character, even if unwarranted, are not misrepresentations of facts that would vitiate a contract. [Cornwall v. Real Estate Co., 150 Mo. 377.] Whether the land was capable of such production we do not know from this record.
Besides, this defendant did not rely on those representations; he went to Alabama to see for himself and took with ■him a neighbor and friend in whose judgment he had confidence. There is nothing in the record that justifies any reflection on the good sense or honesty of Mr. Houselman who accompanied the defendant on his trip. In addition to that there were these two men, farmers who lived in that vicinity, who went with him over the land. Can we suppose he asked no questions nor tried to learn anything, or are we warranted in concluding that every one he came in contact with was in a conspiracy to defraud him ?
Nor was there such a discrepancy in the value as to call for equitable relief. The defendant’s land was worth $1,600, and the Alabama land was, according to the testimony of the assessor, worth $1,000, and was assessed at that value. It does not appear at what-value the defendant’s land was assessed. The fact that Wilson found an opportunity to acquire
As to the allegations of fraud in the act of exchanging the deeds, the preponderance of the evidence is against the defendant. Mr. Hicks, whom .the evidence shows was at one time prosecuting attorney of his county, and is a reputable lawyer, gives a very straightforward history of the transaction and it carries the air of truth with it. It is idle to pretend that the defendant and his brother, Henry, who was present and actively participated in the execution of the deeds, believed they were executing only a lease to the Alabama land and taking rent notes for the same, while refusing to accept a deed to it and refusing to execute his deed in exchange. Why should Wilson take a lease of the Alabama land and give his notes for the rent if the land belonged to him, and defendant refused to have it? By what principle of justice could defendant take the five rent notes for $200 each and repudiate the rest of the contract ? The answer avers that the agreement was that Wilson was to pay $800 a year for five years and give good security for the payments. In other words, defendant was to get in exchange for his 80 acres of Missouri land worth $1,600, 200 acres of Alabama land leased for five years at an annual rental of fifty per cent of the total value of the Missouri land. Whilst there was no attempt to sustain that averment by proof, the fact seems to illustrate the wide difference between the defendant’s allegata and his probata.
If the Alabama land has been suffered to be sold so that it is now lost to defendant, he has only himself to reproach for the loss.
The answer having converted the case into a suit in equity,
The judgment is reversed and the cause remanded to the circuit court of Harrison county, with directions to enter judgment for the plaintiff on the defendant’s equity answer, and for the plaintiff for tire possession of the land in suit, and one hundred dollars damages, assessing the rental value of the land at $100 a year from the tenth day of May, 1899, the date of the decree appealed from, and costs of suit, and award a writ of possession and execution for the damages, rents and costs.
