Davis v. Kent

Atkinson, J. There being sufficient evidence in support of all the material allegations of the plaintiffs’ petition, to carry the case to the jury, it was error to grant a nonsuit. Judgment reversed. Many other witnesses were introduced by plaintiffs, who testified that in their opinion, at the time of the mailing of the deed, Bryant Kent did not have mental capacity to make it, and who gave their reasons for so testifying. A nephew of Bryant Kent testified: Just before he made the deed to Thomas Kent, Bryant wanted to make me the deed to all his property, to take care of him and to settle up Jerusha Kent’s estate of which he was administrator. He did not talk right at the time. I would not accept the deed, and told him he had better keep what he had, or give it to his children and let them take care of him. He said he could not stay with them; treatment from them was so bad. He told me he moved from Glascock to Montgomery for the purpose of fishing and hunting for a living. He left my home and came on to Thomas Kent’s, but I do not think he staid there long. He came to Mrs. Dixon’s, his daughter, and lived with her for some time, and died there- in 1887. He did not seem to improve in health; his mind was better at times, though never clear up to his death. I had some talk, I think, with Thomas Downs, and I know I had with his guardian George Downs, about their buying the 109 acres of land over in Glascock county from Thomas Kent. I can’t say, but I think it was before the deed was made from Thomas Kent to Thomas Downs. I told them that Bryant Kent’s children would sue for that land and I thought there was danger about the titles to the land. I talked with George Downs about it before the deed was made to Thomas Downs, and it was generally talked in the family when Bryant Kent left Thomas Kent’s and came to Mrs. Dixon’s to live. He told me he was compelled to leave Thomas Kent’s, that the treatment of of him Avas so bad he could not stand it. At the time of taking the deed from Thomas Kent, Thomas Downs knew of Bryant Kent’s mental condition. Bryant’s property was worth more -than enough to support him during his lifetime. 'T. ~W\ Bent paid five dollars per month for his board and nursing while he staid with Mrs. Dixon. It was worth more, as he was entirely helpless a good part of the timq and had to be nursed like a child. — J ames Marsh testified, among other things, that he bought the Glascock county place from Thomas Kent before the latter sold it to Downs, but gave it up because he found out about the title and was afraid of it; that the place at that time was worth $75 a year rent, and was worth $500; and that Downs has cut the timber off the land since he bought it. There was evidence that the horse mentioned in the deed was worth $125, that the mule was worth $100, that the sorrel mare was worth $150; and also as to the value of other property covered by the deed from Bryant to Thomas Kent. John Kennedy testified, that in 1882, about a month after Bryant Kent came to Thomas Kent’s, Thomas said to witness that Bryant was pettish and he thought had nearly lost his mind and that his mind was impaired. Bobert Dixon testified, that in 1883, before the deed was made from Thomas Kent to Thomas Downs, he had several talks with Downs about the land Downs bought from Thomas Kent, and told Downs that “we” (Dixon married a daughter of Bryant Kent) were going to sue for the land and he would better let it alone, that Thomas Kent had no title to it; and that Thomas Downs knew of the mental weakness of Bryant Kent when he bought the land, and was informed that the heirs would sue for it. J. L. "Wilcher, who married another daughter of Bryant Kent, testified: In February, 1883, Thomas Kent brought Bryant Kent to my house and spent the night. After Bryant had gone to bed we got to ■talking to Thomas about Bryant making him the deed instead of his children. My wife asked Thomas why he thought Bryant made him the deed. He said he did not believe Bryant was in his right mind, or he would never have made him the deed. Bryant staid át my house about three months and Thomas brought kjm back there in 1885, and lie staid about six months; his mind was bad all the time. I paid all the- doctor’s bills for him while he was at my house. Thomas Kent did not pay me anything, nor did he offer to pay me anything. I brought him back down here to Bennie Dixon’s. — The wife of this witness testified, corroborating him. She testified, also, that before Thomas Downs bought the land he asked her if they were going to try to recover it, and she told him they were and that he would better let it alone; and that Downs said, Thomas Kent has too much money for the heirs to get the land back from him. Amanda Dixon testified, among other things, that her father often told her that if Thomas Kent had a scratch of a pen against him he did not know it. Her testimony and that of other witnesses tended to show, that Thomas Kent did not “keep, support and maintain”' Bryant Kent “as a member of his family” during the life •of Bryant. Another of Bryant Kent’s daughters testified, that she heard him talk about coming off “up here” (John-son county) before he came, and that he said then he was going to make this deed to Thomas Kent; that she heard her father talk about it after he had made the deed; and that he said he was sorry he had made the deed and given his property away. . There was further evidence, that plaintiffs were all of the heirs of Bryant Kent; that he left no debts, and there is no administration on his estate; that, at the time Thomas Kent sold the land to Thomas Downs, George Downs said to Thomas Kent in the presence of Thomas Downs: “You are aware that some day Bryant Kent’s children are going to try for that land”; and that •Thomas Kent replied: “I don’t care for that; I will make •you a warranty deed and defend it”;' and that the administration by Bryant Kent of the estate of Jerusha Kent was all settled up, by payments made by Bryant Kent or by T. "W. Kent as his agent. ' A. F. Daley and B. F. Walker, for plaintiffs. ' W. R. Daley and Evans & Evans, for defendants.