Bennett v. Bennett

91 N.W. 409, 65 Neb. 432, 1902 Neb. LEXIS 340

• Court: Nebraska Supreme Court
• Decided: July 1, 1902
• Docket: No. 12,083
• Status: Published

Opinions

Pound, C.

In June, 1899, Emery W. Tuttle, at that time some 82 years old, conveyed his farm of 160 acres, which was substantially all the property he owned, to his brother-in-law, Ezra Bennett. In November following, Levi Bennett was appointed guardian of said Emery W. Tuttle by the county court of Boyd county, and áfterwards brought this suit to set aside the conveyance. A decree was rendered in accordance with the prayer of the petition, from which this appeal is prosecuted.

A considerable portion of the argument on behalf of appellant has been directed to the sufficiency of the petition. In the title plaintiff describes himself as “Levi Bennett, guardian of Emery W. Tuttle,” and he does not state anywhere in the petition expressly that he sues “as guardian.” For this reason and because the words “guardian of Emery W. Tuttle” might, in strictness, be treated as descripiio personas only, it is urged that this suit is brought by Levi Bennett in his personal and not in his representative capacity, and is not maintainable. But so long as the plaintiff describes himself as guardian, alleges his appointment as such, and by the allegations of the petition and nature of the action, shows clearly an intent to sue in his representative capacity, we may fairly so construe his pleading, notwithstanding his failure to say expressly that he sues as guardian. Williams v. Eikenbary, 36 Nebr., 478.

It is further objected that the petition fails to allege that Levi Bennett was duly appointed guardian, and sets up no facts showing that the county court acquired any jurisdiction to make the appointment. The judgment of a court of general jurisdiction is presumed to be regular and valid. ITence in pleading such a judgment it is enough to allege the parties, its rendition and the date thereof, the court by which it was rendered, and, if not a court of whose jurisdiction judicial notice is taken, that it is one of general jurisdiction, without setting forth in detail the facts whereby jurisdiction was acquired in the particular case. Weller v. Dickinson, 93 Cal., 108, 28 Pac. Rep., 854; Kunze v. Kunze, 94 Wis., 54, 68 N. W. Rep., 391; Scanlan v. Murphy, 51 Minn., 536, 53 N. W. Rep., 799; City of Hammond v. Evans, 23 Ind. App., 501, 55 N. E. Rep., 784; Nicholas v. Farwell, 24 Nebr., 180, 187; Holt County Bank v. Holt County, 53 Nebr., 827. Section 127, Code of Civil Procedure, by its terms applies only to courts or tribunals of special jurisdiction. Similar provisions in the codes of other states are so construed. Weller v. Dickinson, supra; People v. Bacon, 37 App. Div. [N. Y.], .414. In consequence, it is unnecessary to plead that a judgment was duly recovered, where rendered by a court of general jurisdiction. As to all matters of probate, settlement of estates and guardianship, the county courts of this state are courts of general jurisdiction. They alone have original jurisdiction over those subjects, and their jurisdiction thereof is general. People v. Gray, 72 Ill., 343; Epping v. Robinson, 21 Fla., 36; Guilford v. Love, 49 Tex., 715; Glade v. White, 42 Nebr., 336.

Exception is taken also because the ward is not joined as.a party plaintiff, and because there is no allegation or proof that the county court which appointed the guardian has given leave to bring this suit. The former point is contended for on the ground of the rule of equity pleading that a trustee must join his cestui que trust as plaintiff. But we think there is no ground for such a contention in this state, in view of section 32, Code of Civil- Procedure, and the long-settled course of practice thereunder. Walter v. Wala, 10 Nebr., 123. As to the other point, we find nothing in the statutes making such leave of court necessary, and are not impressed with the reasons for requiring it which have been urged. Section 23, phapter 34, Compiled Statutes, makes it the duty of the guardian to represent the ward in all legal proceedings, and section 26 puts him in the position of an administrator with respect to inventorying, getting possession of, and accounting for the ward’s estate. If he brings suits recklessly and improvidently, he may doubtless be removed, or charged with the expense in his accounts. Such seems to be the practice elsewhere. Hinchman v. Ballard, 7 W. Va., 152; McCrillis v. Bartlett, 8 N. H., 569; Equitable Trust Co. v. Garis, 190 Pa. St., 544, 42 Atl. Rep., 1022.

Section 14, chapter 34, Compiled Statutes, provides for the appointment of guardians of persons who “by reason of extreme old age or other cause” are “mentally incompetent to have the charge and management” of their property. The petition in the case at bar alleges that plaintiff was appointed guardian “on account of the extreme age and mental and physical weakness and incapacity of said Emery W. Tuttle.” It is argued that this allegation falls far short of the requirements of the statute and does not suffice to show a proper appointment or any cause of action on the part of the guardian. It will be seen, when we come to the merits of the cause, that plaintiff’s case is not that the deed must fail because the grantor was wholly incapable of making it, but that it should be set aside because of fraud, imposition and undue influence in obtaining it from an aged, infirm and weak-minded grantor, who reposed confidence in the grantee, and was taken advantage of in the transaction. Hence we might well treat the allegations as to the grounds of the appointment as surplusage and uphold the petition on the presumption that must be indulged as to the regularity of the judgment and order of the county court. But, in any event, after judgment, the petition is to be construed liberally. Gage v. Roberts, 12 Nebr., 276. The plaintiff and the county judge were permitted to testify as to the appointment of a guardian without objection, and the parties stipulated in open court that plaintiff was “duly appointed.” So long as the defect is merely a lack of definiteness and precision in essential allegations, ■ not a complete absence thereof, it should not be considered at this time. Barge v. Haslam, 63 Nebr., 296.

Appellant insists next that the petition fails to state a cause of action, in that the allegations of fraud are mere conclusions, without stating any issuable facts or any representations which would afford ground for rescission, because the allegation of want of consideration is insufficient and because there are no allegations of such mental weakness as to render the grantor incompetent to have charge and management of his property at the time the deed was executed. We do not think any of these objections well taken. The petition charges, in substance, that the defendant represented to the grantor, who was an old man, weak in body and mind, that his son and son-in-law were conspiring to defraud him of his land; that they were intending to bring an action against him and would be able to procure a judgment by false evidence and cause the land to be sold to satisfy it, unless conveyed to the defendant; that the defendant promised to.hold the land in trust and reconvey it; that such representations were false; that the conveyance was without consideration; and that it was procured by said false and fraudulent representations in consequence of the extreme old age, mental weakness and childishness of the grantor. While it is true that the representations alleged are all as to the intention of grantor’s relatives, and as to what they would or might do in the future, they are obviously of a nature well suited to work upon the fears of a weak and childish old man, and induce him, when pressed adroitly and persistently, to dispose of his property in order to avoid the suggested dangers. False representations of this character, made to ignorant or weak-minded grantors, or to persons reposing special trust or confidence in the grantee, have always been held ground for canceling the conveyances so procured. Kleeman v. Peltzer, 17 Nebr., 381; Oakey v. Ritchie, 69 Ia., 69, 28 N. W. Rep., 448; Wooley v. Drew, 49 Mich., 290, 13 N. W. Rep., 594; Davis v. McNalley, 37 Tenn., 583, 73 Am. Dec., 159. In each of these cases the representation was that judgments would be procured against the grantor, or that he would lose the land through some ’ threatened or contemplated legal proceedings. When made to persons of full strength and capacity, such representations might be entirely harmless. But made to a feeble, vacillating, childish person, too ready in any event to do whatever is suggested, they necessarily and inevitably result in unjust and inequitable transactions. The allegation that the conveyance was without consideration, is excepted to on the authority of Sac County v. Hobbs, 72 Ia., 69, 33 N. W. Rep., 368. That was an action on a promissory note. The defendant pleaded that the note was “executed and delivered without any consideration whatever.” The court said: “Whether the contract is supported by a valid consideration depends upon the circumstances under which it was executed, and the purposes which the parties had in view when they entered into it.” Accordingly the allegation was held a mere statement of a conclusion and proper to’ be stricken out. But here the nature and circumstances of the conveyance are fully set forth, its purpose is disclosed, and the want of consideration is set forth as a fact, which, in connection with all the other facts, goes to show the character of the transaction, and calls for the interposition of a court of equity. In its present connection, the allegation is not open to objection. Wait, Fraudulent Conveyances, sec. 144. The allegations of mental weakness are not as strong as the statutory requirements for the appointment of a guardian; nor are they sufficient, we may concede, to require the deed to be canceled on the sole ground that the grantor was without capacity to make it. In such a case as this so full a measure of incapacity is not required as a condition of relief. Although mental weakness may fall short of entire incompetency to transact business, if it is taken advantage of to procure a conveyance by inequitable means, the conveyance may be set aside. Loder v. Loder, 34 Nebr., 824; Kleeman v. Peltzer, 17 Nebr., 381; 2 Pomeroy, Equity Jurisprudence, sec. 947. We are well satisfied that the petition states a cause of action, and is free from substantial defect.

It remains to consider whether the decree is sustained by the evidence. The evidence adduced by the plaintiff sbowed that the grantor had been very feeble in mind and body for some years before the conveyance. He was 82 years old. His wife Avas dead, and he had been living Avith one or another of his relatives since her death. He had not done his own business for many years, and had become subject to fainting spells, so that it Avas not thought prudent to permit him to go about by himself. A number of Avitnesses testified thaí he Avas forgetful, childish, and vacillating; that he talked to himself; and that his condition in these respects was growing Avorse before the deed ay as executed. It is in evidence on behalf of plaintiff that in former years he had not been on friendly terms with Ezra Bennett, the grantee, but at the time of the transaction in question,’ it is clearly shown that the latter had his full and entire confidence in all things. He was living Avith the grantee Avlien the deed Avas executed, and at that time and since seems to have believed that his other relatives, especially a son and son-in-laAV, Avere conspiring against him and trying to get his property, and that one of them had a large claim which he intended to put in judgment and make by execution. The land Avas clearly exempt, even though he had ceased to occupy it after his Avife’s death. First Nat. Bank of Greenwood v. Reece, 64 Nebr., 292. MoreoArer, his children deny expressly that any such claims existed, or that there was ever any thought or intention of asserting them.. Yet even at the time of the trial he was firmly possessed of this fear, and, according to one of his sons-in-laAV, he stated after the deed was executed that he made it because of claims Avhick his son and another son-indaw held, and that he could get the land back at any time. Other Avitnesses testified that the grantee admitted on several occasions that he held the land in trust for the grantor, and there is much evidence that he agreed at one time to re-convey at the request of the grantor’s other relatives. Defendant denies most of this testimony, and produced not a little evidence in conflict Avith it. He asserts that he bought the land of the grantor, who was abundantly able to do business at the time, giving therefor two notes, aggregating $750, due in three and five years, secured by mortgage, and the first year’s rent, $110, and assuming a mortgage of $150. There was ample evidence to justify the court in finding that the land was worth at least $1,600, and that it was rising in value, in which case the bargain was scarcely a fair one. There was also sufficient evidence to sustain a finding that the notes and mortgage were never delivered, but remained at all times in Ezra Bennett’s possession and control. It is true, the mortgage was recorded. But it seems to have been recorded by the defendant, and to have been returned to and retained by him after recording, without reaching the mortgagee. The grantor could not say that he ever had the notes, and knew very little about them. They never came into the hands of his guardian. If the court believed the Avitnesses who testified to admissions of the grantee, as it may well haAre done, it was justified in finding that there Avas no sale, but a mere conveyance in trust to prevent the supposed claims of the son and son-in-law from becoming liens on the land. In such case the decree is manifestly proper. Kleeman v. Peltzer, 17 Nebr., 381. The trial court.suav the Avitnesses and had the great advantage of seeing the grantor and hearing him testify. We ought not to set aside the decree under such circumstances unless it is clearly wrong. A court of equity Avill scrutinize jealously a transaction as to which there is ground for holding that influence has been acquired over a person of weak mind, and has been abused. Smith v. Kay, 7 H. L. Cas. [Eng.], 750, 759. The circumstances under which a conveyance was made, the condition of the grantor at the time, and the injustice to him and his heirs if it is upheld, may be such as to cast upon the grantee the burden of shoAAdng that it is untainted with undue influence, imposition, or fraud, but is the intelligent and deliberate act of the grantor. Gibson v. Hammang, 63 Nebr., 349, and cases cited. Hence, under the circumstances of this case, as there is ample testimony on behalf of plaintiff to sustain the decree, and it is by no means certain that defendant ought not to be held to the burden of proof as to the fairness and bona fieles of the transaction, we have no disposition to interfere.

The following opinion on rehearing was filed October 7, 1903: 1. Record: Re-examination: Syllabus Reannounced. The record re-examined, the former opinion adhered to, and its syllabus reannounced. 2. Stipulated Fact: Defective Pleading. AVhere a defendant at the trial stipulates that a fact exists, he may not secure a reversal after judgment against him because of a defective pleading of the stipulated fact.

It is urged that there should have been a tender of the notes and mortgage. But plaintiff denied that there Avas a sale, or that the notes and mortgage were ever delivered. On this point the trial court evidently found for the plaintiff. The defendant admits he paid out none of his own money, the sole money payment being the rent of the farm for the year in which the deed was madé. This being so there was no consideration to restore and no tender of that which never came to the hands of plaintiff or his ward was necessary.

We recommend that the decree be affirmed.

Barnes and. Oldham, CO., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.