Bumgardner v. Corey

21 S.E.2d 360, 124 W. Va. 373, 1942 W. Va. LEXIS 92

Opinions

Lovins, Judge:

Rena Bumgardner, committee for W. C. Rollins, an incompetent person, instituted this suit in the Circuit Court of Kanawha County against Sam Corey for the purpose of setting aside a deed executed -on November 21, 1936, in which W. C. Rollins was grantor and Corey, the grantee. It is alleged that Rollins was induced or coerced into the execution of the deed by wrongful threats of litigation by V. T. Harrison, Rollins being mentally incompetent at the time. After a full hearing on bill, demurrer, answer and depositions, the trial court denied the relief prayed, for reasons hereinafter set forth, and dismissed plaintiff’s bill, from which action of the trial court, plaintiff was granted this appeal.

W. C. Rollins, about sixty years of age at the time of the institution of this suit, was reared on Fisher Ridge in Jackson County. From 1918 until November, 1930, he was employed as a day laborer by the Appalachian Electric Power Company. During the year 1931, he married Cora Pauley and they resided on her farm on Camp Creek in Kanawha County, where, it is alleged, she expended all or the greater part of his life savings, amounting to three or four thousand dollars, in the improvement thereof. It is shown that Rollins suffered for years from a progressive mental deficiency, described as sclerosis of the radial and temporal arteries, the development of which increased while he was at Camp Creek until he became practically blind. In January, 1936, his brother, G. L. Rollins, took him to the home of his sister, Rena Bum-gardner, in Jackson County because of his mental and physical condition and the alleged mistreatment by his wife, who, a few days thereafter, lost her life in a fire which destroyed their home. In March, 1936, W. C. Rollins was taken to the home of his brother, G. L. Rollins, on Fisher Ridge, where he has remained except for a period of some nineteen months from March, 1937, to October, 1938, when he resided with relatives of his wife, in Poca District, Kanawha County.

As indicative of his mental deficiency, during the time he was at Camp Creek and about the time of the execution of the deed under attack herein, certain lay witnesses testified that in their opinion, he was not competent. It is also shown that W. C. Rollins was unstable and flighty in conversation, repeating matters or changing abruptly the subject of conversation, and continually asking the names of old acquaintances with whom he was conversing; that he attempted suicide various times, that he threatened to “make a sieve” out of the roof of his wife’s home with his pistol; that he “cried like a baby” on numerous occasions, when his wife whipped him with a rope, when G. L. Rollins left him at the Bumgardner home, when he was taken to the home of G. L. Rollins and when Delbert Pauley moved out of the Poca District residence; that he would offer to sell his property and then refuse to sell it at the price he had fixed; and that his wife and the neighbors at Camp Creek on numerous occasions said he was crazy. A neurologist, Dr. A. A. Wilson, examined W. C. Rollins in January, 1939, and found that he was not competent at that time. In answer to a hypothetical question setting forth the peculiarities hereinbefore mentioned and taking into account his examination and interview, Dr. Wilson also stated that, in his opinion, the incompetency he found in January, 1939, was present at the time of the incidents referred to in the question.

On the question of mental capacity, the testimony of numerous witnesses for defendant was generally to the effect that W. C. Rollins was competent to transact business, nothing indicating mental incompetency being observed by such witnesses although Lela Pauley, with whom W. C. Rollins resided in 1937 and 1938, testified that she had suggested to him and to “his people” that he ought to have someone to look after his business. Dr. G. C. Robertson, a general practitioner, who examined W. C. Rollins in 1941, testified that his physical condition was very bad, his eyesight was impaired and that he had hyper-tension and dilated heart. Dr. Robertson further testified that Rollins could transact business on the date of his exam ination, and that he could not say that Rollins was insane.

On March 10, 1936, W. C. Rollins and his brother, L. P. Rollins, owners of a tract of land in what is known as the Sissonville Gas Field, executed a lease thereof to the Columbian Carbon Company. During the summer of that year, while W. C. Rollins was living with his brother on Fisher Ridge, Delbert Pauley, a nephew of his then deceased wife, brought him to Charleston where they met Y. T. Harrison, an unlicensed dealer in real estate, and discussed a sale of Rollins’ undivided interest in the leased tract.' It was proposed that Harrison sell the same for $800.00 and receive five per cent of the sale price as his commission. In the latter part of July, 1936, Harrison began negotiations with Sam Corey in Charleston, pursuant to which Harrison, Corey and Joe Moore inspected the land on August 15, 1936. While on this inspection trip, Corey expressed some doubt as to Rollins’ competency to make a deed, according to the testimony of Ida Rollins, W. C. Rollins’ sister-in-law, who resides on the land involved herein. This is denied by Corey, but he testified that prior to the sale, “almost I was afraid to buy it.” About ten days later Corey entered into an agreement with Harrison that he would purchase the interest of W. C. Rollins for $1,000.00. However, when Harrison, Pauley and Moore werit to Fisher Ridge and told Rollins about the agreement, he informed them he was “out of the notion” of selling his interest. This was followed by several unsuccessful attempts to bring Rollins to Charleston for the purpose of making the sale to Corey. On one occasion, when Rollins reiterated that he was not inclined to sell and added that he desired to go to Charleston to see his doctor, Harrison suggested that he go with Pauley, Moore and himself, to which suggestion Rollins assented. On this trip to Charleston, Rollins said that he would not sell his interest under any consideration, and returned to Fisher Ridge the next day, after seeing his physician. In November, 1936, Moore returned to Fisher Ridge, and told Rollins and Pauley that Rollins’ lawyer, W. H. Pettry, wanted to see him, whereupon, they came to Charleston. While waiting in Pettry’s outer office, Rollins told Pauley that Moore “needn’t follow him around * * * he was not going to sell the place.” Pettry talked with Rollins privately, after which Rollins told Pauley that Pettry said that Harrison was going to sue him for his commission of $200.00, if he did not sell, adding that “it looks like I’m going to have to sell it.” Rollins and Pauley then went to lunch, during the course of which Rollins told Pauley that he didn’t know what to do about the threatened Harrison suit, and that he was afraid that Harrison would take everything he had. After lunch, Rol.lins and Pauley returned to Pettry’s office where they met Harrison, Corey and an attorney apparently representing Corey, who argued with Pettry that Harrison could enforce collection of commission on the sale of the land. The deed was thereupon prepared and Rollins’ signature was evidenced by his mark, made by Pettry while Rollins touched the pen held by Pettry. Harrison testified that Pettry asked Rollins at that time, “Is this what you want, to do?”, to which Rollins answered affirmatively. The notary, who took Rollins’ acknowledgment to the deed, testified that he did not observe anything wrong with him-although it was his impression that his eyesight was somewhat impaired. For this transaction, Rollins received $150.00 cash and $650.00 in notes in the amount of $25.00 each, payable monthly from date of the sale, and Harrison received $50.00 cash and $150.00 in similar notes. After the parties had left Pettry’s office, Harrison gave Pauley $25.00, saying, “We had to come and get you before we could get him in here.’’

The trial court found: (a) That the record does not show that Rollins was so mentally incompetent that his mental incápacity alone would furnish a basis for the setting aside of the deed in question; (b) that Harrison’s threat of suit to collect a commission was not made in good faith and that in view of Rollins’ condition at the time, Harrison’s conduct constituted such duress as would entitle Rollins to cancellation of the deed to Corey, if Corey is bound by Harrison’s wrongful act; and (c) the record does not justify the finding that Corey knew of or sanctioned the duress applied by Harrison to require Rollins to execute the deed.

Appellant contends that the findings as to mental capacity and Corey’s knowledge of Harrison’s duress are erroneous, while appellee argues that Rollins’ mental capacity for execution of the deed was amply sufficient; that the record does not show coercion or improper influence; that if such existed Corey is not responsible therefor or chargeable therewith; that the price paid by Corey represented the market value of the property; and that plaintiff is guilty of laches.

With the first two findings of the trial chancellor, as indicated, we are in agreement. Rollins’ mental and physical infirmities, as shown by this record, do not establish total incapacity, and are insufficient to overcome the presumption of mental capacity at the time of the execution of the deed. Teter v. Teter, 59 W. Va. 449, 53 S. E. 779; Burkle v. Abraham, 112 W. Va. 257, 164 S. E. 150. On the question of duress, it should be noted that the earlier requirements of common-law dhress have been enlarged by the courts, both law and equity, to include “any wrongful acts that compel a person to manifest apparent assent to a transaction without his volition or cause such fear as to preclude him from exercising free will and judgment in entering into a transaction.” Restatement of Contracts, Sec. 493, Williston on Contracts, Rev. Ed. Sec. 1603. Formerly, the term “duress” was limited to acts causing personal restraint, fear of personal injury or imprisonment. Simmons v. Trumbo, 9 W. Va. 358, although as early as 1885, this Court had relaxed the rigidity of the original rule. See West Virginia Transportation Co. v. Sweetzer; 25 W. Va. 434. The cases of Whittaker v. Improvement Co., 34 W. Va. 217, 12 S. E. 507, and Mullens v. E. A. Searls Co., 69 W. Va. 790, 72 S. E. 1089, hold that the threat of civil suit is not legal duress. However, where such threat is not made in good faith, that is “if the threat is made with the consciousness that there is no real right of action and the purpose is coercion, a payment or contract induced thereby is voidable.” Williston on Contracts, Rev. Ed. Sec. 1606.

Harrison, in his deposition, stated that he told Rollins that he would sue him, after, Rollins had said that he would “just leave the deal go by”, and in answer to the next question by counsel for appellee, “Was there anything else to your knowledge that induced or coerced the old gentleman to sign this deed?”, Harrison said, “No, sir, not a thing, as I know of.” It appears that Rollins was troubled about the threatened suit for $200.00, and it is clear that if Harrison had any claim for a commission, based upon an agreement with Rollins, it was for 5% of $800.00. The trial chancellor so found, discrediting, in view of Harrison’s character as shown by the record, his testimony as to Rollins’ voluntary acceptance of the change in the agreement whereby the sale price was raised to $1,000.00, and Harrison’s commission to $200.00. Despite counsel’s assertion in the brief that Harrison’s testimony shows that there was “complete understanding” between himself and Rollins, we are inclined to accept the views of the trial chancellor in this regard,, especially since counsel do not indicate wherein the chancellor erred on this point, other than to say that it was an “erroneous conclusion”, and an “apparent misunderstanding.” Neither are we impressed with the argument that Rollins was greatly benefited by receiving $800.00 instead of $760.00 due to Harrison’s so-called generosity; it suffices to say that counsel rely upon Harrison’s testimony that Rollins said he was “perfectly satisfied” with the deal. ■

We have followed the trial court in its finding that mental incapacity alone would not furnish a basis for setting aside the Rollins deed. However, we believe the record portrays a physical and mental condition of the grantor which rendered him a ready victim for the duress employed herein. The true test is whether the will of the person threatened is overcome by wrongful threats, inducing him to do an act which he would , not otherwise have done, and which he was not bound to do. The age, capacity, and all the attendant circumstances must be considered. Williston on Contracts, Rev. Ed. Sec. 1605. The record shows a series of attempts to induce Rollins to make the conveyance, and his repeated assertions that it was not his desire to do so, which assertions continued up to the moment of the threat of suit for a commission in an amount five times that originally contemplated.

Our disagreement with the conclusions of the trial chancellor arises on the question of Corey’s knowledge of the duress applied by Harrison. “The general rule that a contract will not be set aside because of the duress of a third party, unless the obligee has knowledge of, or consents to, the coercion, has been applied to deeds.” 62 A. L. R. 1479, 4 A. L. R. 868; Dunfee v. Childs, 59 W. Va. 225, 53 S. E. 209. According to the Restatement of the Law of Contracts, Sec. 496, 477, duress by a third person renders a transaction voidable by a party induced thereby to enter into it if the other party thereto “has reason to know” of the duress “before he has given * * * in good faith something of value in the transaction.” In Rodes v. Griffith, 102 W. Va. 79, 135 S. E. 244, 246, we held that facts and circumstances may “prima facie impute notice” of duress exercised by a third person to the person benefited thereby without actual knowledge.

Corey testified that after he agreed to purchase Rollins’ interest for $1,000.00, about August 5th or 10, 1936, “for a while they dragged on with it for some reason and I was not feeling like buying the farm, but it went on, I guess, about two or three weeks or a month, maybe and Trevy (Harrison) called me and said I had promised to buy that farm and to come up to Mr. Pettry’s office.” It is noted that the occasion of the call to Pettry’s office was November 21, 1936, more than three months from the time Corey had agreed to purchase, and during which time the efforts to get Rollins to sell had been met with his refusals. This testimony of Corey’s with his statement that “almost I was afraid to buy it”, indicates that there was some question in his mind as to the regularity of the transaction with Rollins. In spite of the fact that they “dragged on for some reason” and the expressed ap prehension as to the purchase, Corey says, “I just done all the business with that man, (Harrison) I never had occasion to talk to anyone else about it”, and that the first time he saw Rollins was the day the purchase was consummated. The law imputes to a person knowledge of facts of which the exercise of common prudence and dilL gence must have apprised him; whatever fairly puts a party on inquiry is regarded as sufficient notice where the means of knowledge are at hand. Pocahontas Tanning Co. v. St. Lawrence Boom & Mfg. Co., 63 W. Va. 685, 60 S. E. 890. We believe that, having the doubts as expressed by Corey himself, he can not now claim protection as an innocent purchaser for value when, in the exercise of common prudence and diligence, he could have ascertained the weak and vacillating mental condition of Rollins and the means used by Harrison to force the sale. Since, however, he chose to do “all the business” with Harrison, we must hold him with constructive knowledge of the duress here employed.

There is evidence to the effect that an attorney, who apparently was looking after Corey’s interest in closing the transaction, argued with Rollins’ counsel, in his presence; that Harrison could gnforce collection of his commission, but it is not clear that any knowledge of the duress employed by Harrison came to Corey’s representative from the argument or negotiations concerning the sale of the land, and, as hereinbefore indicated, we ground our decision on the actual or imputed knowledge of Corey.

We do not believe that this suit is barred by laches. In the first place, laches can not be imputed to one of unsound mind. Trowbridge v. Stone’s Adm’r., 42 W. Va. 454, 26 S. E. 363. Laches is inexcusable delay in asserting a right, an equitable defense determinable by particular facts, but the term implies knowledge of one’s rights. The very fact that Rollins was pliant and surrendered to the threats of Harrison shows that he had no conception of the necessity for promptness in asserting his rights. This suit was instituted on the same day thát Mrs. Bumgardner was appointed as committee for Rollins. But, it is contended, the committee was appointed because of the development of a gas field in the vicinity of the property. We do not believe the record is sufficient to support this contention of appellee. The property was under lease for oil and gas development at the time the deed was made and the testimony shows that the nearest well to the property in question in November, 1936, was two and three-quarter miles away; no well had been completed in closer proximity at the time this suit was instituted.

For the reasons stated, the deed in question will be can-celled and set aside, but appellant is not entitled to such relief until Corey has been reimbursed for money paid to Rollins in cash and in satisfaction of the purchase money notes, principal and interest, together with interest on the principal amounts so paid from date of payment.

Accordingly, we reverse the decree of the Circuit Court of Kanawha County, and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.