Elder v. Schumacher

Chief Justice Hayt delivered the opinion of the court. The sole controversy in this case grows out of the deed of' Mrs. DeWalt to her sister, Mrs. Brewster. The contention — 436 — of the plaintiff is that Mrs. DeWalt at the time of- its execution was non compos mentis; it is claimed that no title passes by this deed, but that the title to the premises remained in Mrs. DeWalt, notwithstanding the deed, at the time of her death, and that, dying without issue, the title vested in her husband, under the statute, thereby becoming subject to execution for his debts. No question was raised by counsel below, or in this court, as to the sufficiency of the pleadings to raise the question of Mrs. DeWalt’s capacity at the time to execute the deed to Mrs. Brewster. And no evidence was introduced showing, or tending to show, that Mr. DeWalt was insolvent at the time he deeded the property to Mrs. DeWalt. In support of plaintiff’s contention that Mrs. De Walt was of unsound mind at the time she deeded the property to her sister, Mrs. Brewster, the following evidence, inter alia, was offered and admitted: B. S. Galloway, a witness called on behalf of plaintiff, testified, inter alia, that he was a practicing physician and attended Mrs. DeWalt in her last illness; was called to her within a few minutes after she was stricken with paralysis, upon the second day of January, A. D. 1883. The witness continuing said: “ I was called there within fifteen minutes after she was stricken down, and found her in an unconscious condition, apparently suffering a good deal of pain, and entirely paralyzed. I think it was on the left side. She died c>n the twenty-fourth day of the same month, from that trouble. . . . She did not have her reasoning faculties during that time. There were times when she would apparently understand some things that were said to her, but the greater part of it she knew nothing that was going on about her. She was not of sound mind, 1 should judge, not any of the time I attended her up until her death.” On cross-examination the witness said that he was called to attend Mrs. De Walt on the second of January, in the evening, between six and seven o’.cloek; that he found, at her bedside, Mrs. Tomkins, one of her sisters, Mr. DeWalt, Mr. Tomkins and Mrs’. — 437 — Brewster. * * * The witness further testified that during her sickness there were times that she would apparently understand what was said to her. * * * “ I was not there all the time, and was very glad not to be. . There might have been a great many times that she understood what was said to her, in my absence.” Upon redirect examination, the witness said: “She had no feeling on the side that was paralyzed; I would occasionally pinch the limbs to see if there was any sensation left. I believe they were burned at one time, and hot applications applied to her, and it was so hot that it would burn her, and she did not know anything about it.” Dr. D. H. Dougan testifies that he was called to attend Mrs. DeWalt on the second day of January, A. D. 1883, in consultation with Dr. Galloway; that he was there within, probaffiy, half an hour of the time of her attack; that he saw her every day for the second, third, fourth, fifth and sixth days, and after that at irregular intervals until her death. * * * “ On my arrival I found her suffering from apoplexy; she was totally unconscious ; paralyzed on one side, and the condition was one that suggested danger of death within a few hours. She remained paralyzed until her death, on one side, and her mental condition, my recollection is, cleared up to some extent during her illness; that is to say, at first she was absolutely unable to express any wish, or want, or to respond to any question, but there were days during her illness when she would answer ‘yes ’ if you asked her if she wanted water, and show some degree of intelligence.” The witness further testified that according to the best of his judgment there was no time during her illness when she was of sound mind. “ I should say she had the most intelligence about the middle period of her illness.” He also testified, in answer to further inquiry, that he did not think that at any time during her sickness her mind was in such condition that she had sufficient mental capacity to make a contract. Louise S. Call, a witness for the plaintiff, testified as follows : “ I knew Mrs. DeWalt in her lifetime; was her — 438 — nurse during her last illness; was with her constantly: I should think that she was in a semi-conscious condition. I don’t-think she realized or knew anything. - She realized nothing; - she knew no one perfectly. When I first went into her room she was very averse — she did not like to have any strangers come in ; it made her very nervous and hysterical if they did, and they hesitated about having me come in; but as soon as-I went in she thought I was an old schoolmate friend of hers, Ella Bickford, and she called me ‘ Ella ’ all the time I was there, and became very much attached to me, and wanted me to stay with her all the time, and would hardly let me go upstairs to get a little rest. I had to lay down by the side of her, and she imagined her sickness was caused from a different, cause altogether; she thought there was a child and that it had -been taken, away from her, and she .craved constantly for the baby. They never had any children. I know that she was never able to give herself a drink of water; she could not raise .her hand to her head. I am. very positive it was the right-side that was paralyzed, because X. know she was perfecly helpless. She was .not in a condition to sign her-name., or to realize what anyone was saying, if they should have made a request of that kind; she could not do it possibly. * *• *- She . never connected any sentences, very seldom ever. Mrs. Brewster was with her, and Mrs. Tomkins, all the time.” ,On cross-examination this witness said: •. “X cannot .really remember the date-when. I went there, exactly, but she had not been sick but a very few days, four or five days, when I went there.” The only other witness called, to testify as to the mental condition of Mrs. DeWalt during her sickness was H. H. Tomkins. . This witness testified-among other things, as follows: “I have known Mrs. DeWalt all my life, nearly. I did not. visit very much at the. house during her illness. I was there probably — well, immediately preceding her death I was. there- every day. I called at the house several times, but I did not see Mrs. DeWalt but twice, I think. . The — 439 — first time, I think — was- they told me she was getting better, I could go in and see her; it was about ten days or two weeks, I should judge, after she was taken sick, or had this stroke, I saw her; she was in bed. * * * She recognized me; I had a conversation with her; she comprehended what I said, and I comprehended what she said. I could not say how many days that was before she died. I think she died, if I recollect right, about a week afterwards.” The foregoing is the substance of all the testimony offered with reference to the mental condition of Mrs. DeWalt, during her last sickness, except that her attending physician testified that the usual rule in such cases was for the patient to be at her best about the middle of the sickness, and, while he had no distinct recollection of this particular case, he judged that Mrs. DeWalt’s case was not an exception. There is abundant evidence to warrant the jury in finding that Mrs. DeWalt was physically incapable of signing her name on the fourth day of January, the date at which the deed to Mrs. Brewster purports to have been executed; and also to show that she was mentally incapacitated from transacting any business intelligently after she was stricken with paralysis, on the second day of January. It also appears that Mrs. Brewster, the grantee in the deed, was present during her entire sickness, and was fully informed of such physical and mental incapacity. In addition to this, it is shown that George B. Elder, who was the real purchaser of the title derived through the deed of Mrs. DeWalt, taking the deed in the name'of his father, George W. Elder, the appellant, knew at the time of the outstanding title claimed under the execution sale. In fact he was negotiating to purchase the latter title, prior to the actual purchase of the former. In the light of the foregoing evidence, we will consider the two legal questions which appellant says arise in this case, and which he deems of more than ordinary importance. These questions as stated by counsel are,— First: How far does the condition of a remote grantor af — 440 — feet the rights of a remote grantee, who purchased in good faith without notice of any unsoundness, and who is guilty of no fraud? Second: Is a bona fide- grantee entitled to have the money paid by him restored, before the deed under which he claims can be set aside ? As we have said, the jury were warranted in finding that appellant had notice of the alleged defect in the title that he was receiving, at the time he purchased. Aside from this, the jury were warranted in finding (and in support of the judgment of the court below we must assume that they did find) that Mrs. DeWalt at the time the alleged deed was made by her, to her sister, was physically and mentally incapable of executing a conveyance. Under these circumstances, the deed in question -was absolutely void, and of no 'force and effect whatever. In Knox et. al. v. McFarran, 4 Colo. 586, it was decided that in an action of ejectment it is competent to show that a deed relied upon to defeat the action was in fact made with intent to defraud creditors. The opinion proceeds upon the Avell established jurisdiction of courts of law to investigate matters of fraud. In this case it is claimed that the deed in question is a forgery, and the court certainty had jurisdiction to determine that question. Moreover, the question of the capacity of the grantor to convey and the cognate question of forgery were fully raised by the pleadings in the case. Appellant deraigned his title in his answer, and the replication set up the incapacity of Mrs. DeWalt, appellant’s remote grantor, and the question of such incapacity was clearly open to investigation. In fact, this was the sole issue tried in the district court. Parties ought not to be allowed to question, in this court, a proceeding to which the3r assented at the trial. Aside from this it has been held in many well considered cases that it is competent to show the incapacity of the grantor of a deed, relied upon as a defense to an action of ejectment. Dexter v. Hall, 15 Wall. 9; Eaton v. Eaton, 37 N. J. L. 108; Farley v. Parker, 6 Oregon, 105, and cases cited. — 441 — The invalidity of Mrs. DeWalt’s deed to Mrs. Brewster appearing, and this deed being an essential link in appellant’s title, it follows that his title must also fail. Preliminary to the consideration of the second question, we are led to inquire whether appellant paid any consideration for the deed which he received. Mrs. Brewster being cognizant of the mental condition of Mrs. DeWalt, at the time it is claimed the deed to her was executed, is not in a position to demand repayment, even if she had given a valuable consideration for such deed, which is not shown. While there is some conflict in the authorities as to the circumstances under which courts will require the consideration to be refunded as a condition to the setting aside of the deed of a non compos mentis, all agree that a person, paying with knowledge of the incapacity of the grantor, cannot recover. And Elder, having purchased with notice of the prior equity, cannot rely upon the recitals of his deed to show that he gave a valuable consideration for the same. There is consequently absolutely no evidence in the record that he ever paid a dollar for the quitclaim under which he claims title. The instructions, when read in the light of the pleadings and evidence in the case, we think will be found to satisfy the law. Instruction No. 5 reads as follows : “ The court instructs the jury, that if you believe from the evidence herein that L. M. DeWalt, on the fourth day of January, 1883, had no sufficient strength of mind and reason to understand the nature and consequence of her act in making a deed, then she did not have the power to convey an indefeasible title, and this incapacity inheres in all titles derived from her; the grantee whose title is thus derived must rely on the covenants of his deed. He risks the capacity to convey of all persons through whom his title has passed; the right of such a person to avoid his or her contract is an absolute and paramount right superior to the equities of other persons, and may be exercised against bona fide purchasers, from the grantee, and the law does not require the party — 442 — claiming the premises as against such purchaser to repay, or to offer to repay, the amount paid by him for said premises.” It is claimed that it would have been more accurate if, instead of specifying the date as January 4th, the instruction had said at the time of executing the deed to Mrs. Brewster. We do not think the instruction is open to this criticism. There is no evidence to show that Mrs. DeWalt’s physical and mental capacity varied materially during any portion of the time mentioned. The evidence, on the contrary, shows that she was physically and mentally incapacitated from executing the deed at any time during her sickness. If the evidence had shown that her incapacity was temporary, varying from day to day and hour to hour, then it might have been necessary for the court to have given the instruction in a different form. It is said that the part of the instruction referring to the “ power to convey an indefeasible title ” is erroneous. Perhaps the court would have been justified under the'circumstances in instructing the jury that the conveyance made under such circumstances was absolutely void, but the giving of the instruction in the more modified form, if error at all, was error in favor of the appellant, of which he had no right to complain. The terms void and voidable, with reference to instruments executed by persons of unsound mind, are sometimes used by law writers indiscriminately. An examination of the authorities discloses that in a case where a deed ab non compote has not been ratified after restoration of the mental faculties, it is generally designated as void, while a deed executed under similar circumstances, if afterwards ratified, is usually spoken of as voidable. This case appears to have been fairly submitted to the jury, and the evidence is overwhelmingly in favor of the finding for appellee. The judgment should be affirmed. Affirmed.