Bodelsen v. Swensen

Mr. Justice Ricks delivered the opinion of the court: The contention of appellant is, that the evidence does not warrant the finding of the circuit court and does not sustain the decree rendered. The evidence was heard by the chancellor in open court and was in many respects contradictory and irreconcilable. As to the mental condition of the grantor at the time of the execution of the deeds in question, thirteen witnesses testified,-—six in behalf of the appellee and seven in behalf of the appellant. Those testifying in behalf of appellee, besides himself, seem to be entirely without any special or pecuniary interest in the matter, while those testifying in behalf of appellant, with but possibly one or two exceptions, occupied positions that might, at least, tend to render them susceptible of bias. The scriveners who drew and acknowledged the deeds testified that they believed that at the time of the execution of the deeds the grantor understood the nature of the act or they would not have taken the acknowledgment. . However, Claud B. Davis, by whom the first deed was prepared and acknowledged, testified that he prepared the deed at his office, at the requést of Mr. Bodelsen, father of appellant; that at the time the deed was signed by appellee he was very much run down,—was thin and haggard and seemed to be very weak physically; that he had not seen appellee for some three, four or five weeks prior to that time, and when he saw him on that day he was very much surprised to see his physical condition. Witness further stated that at the time of the signing of the deed the grantor was very nervous; that some one got a sheet of paper and grantor tried to write his name on it; that he was so nervous he would write a part of it and then go clear off; that he did not seem to be able to write legibly at all; that in these various attempts he did not go further than the first name and the rest would be a scrawl; that his pen would fly off the line and he would decide he was too nervous to write, and the deed was finally signed by mark. The deed of September 16 was drawn and acknowledged by L. D. Condee, and was also signed by mark. This witness testified that he thought appellee a very sick man; that his mind seemed to be strong enough, but his body seemed to be in a pretty bad shape. Henry Davis, witness to the first deed, testified that appellee was, at the time of signing the deed, sick and feeble, and in response to the question of whether witness believed, on the occasion of the signing of the deed, there was any question as to the grantor’s mental ability to execute the instrument, witness replied that such a possibility never entered his mind, and that he went over there as a friend, and thought he was favoring Capt. Swensen, the appellee. Witness further stated that at the time it was very hard for appellee to write, and after making several attempts he finally said he could not do it, and made his mark. Ebba Bodelsen, appellant’s mother, another witness on behalf of defendant, testified, in response to the inquiry of whether she thought appellee was, during the period from June, 1901, to October, 1901, of sound and disposing mind and' memory, that “he did not seem to care very much how things went.” The testimony introduced by appellee, taken as a whole, was to the effect that in July and August, 1901, appellee was treated for gastritis and rheumatism, at which times, and in October, 1901, he was in a dazed condition of mind, not recognizing persons whom he met; that he had albumen in' the urine, and re-absorption would act, so as to paralyze the nerve centers, and the mind was affected in the way of coma or paralysis; that at and about the time in controversy appellee did not know or recognize persons with whom he was well acquainted, when he met them; that at and prior to such times appellee was very sick and feeble, and some of the witnesses declared him to be of unsound mind. Appellee testified that he was very sick for a period of three months during the fall and summer of 1901; that much of that time he was out of his mind; that he did not remember of signing the deeds in question; that he first learned about the deeds when he began to get well, in October, 1901, when he protested at not receiving the rent. This suit was commenced in June, 1902. On the question of consideration there is no evidence of any money being actually paid, and the evidence as to the alleged agreement for support and care of appellee by appellant is contradictory and unsatisfactory. Appellee was about seventy years of age, and surrounded by persons, at the time of making the deeds, whose interest in the present controversy makes them adverse and hostile to him now. We deem it unnecessary to make further comment upon the evidence in this case. Enough has been said to clearly show, as we think, that the decree rendered by the chancellor below was not manifestly against the weight of the evidence, and unless it was, we would be departing from a long and well established rule should we now disturb the finding of the trial judge who had before him the witnesses; and the means and conditions for judging as to the proper weight to be given to the testimony of the various witnesses was much more favorable than is the inspection of a record. As was said in Elmstedt v. Nicholson, 186 Ill. 580: “The chancellor saw and heard the witnesses, knows their manner of testifying while on the stand, and is better qualified than we to judge of the weight to be given to their testimony. In chancery cases, where the evidence is conflicting and heard in open court, the error in finding as to fact should be clear and palpable to authorize a reversal.” And again, as was said in Fabrice v. Von der Brelie, 190 Ill. 460: “It is contended that the evidence does not warrant the finding of the circuit court and does not sustain the decree rendered. The evidence was heard by the chancellor in open court and was conflicting in many particulars. In such case, to authorize us to reverse as to a finding of fact the error must be clear and palpable.” In this case the facts found by the trial court we think reasonable deductions from the evidence offered, and the testimony fully sustains the decree, which is now affirmed. Decree affirmed.