BerKsi-iire, P.
The object of the bill filed by the appellees against the appellant and others, in the circuit court of Wood county, was to impeach and set aside, as fraudulent, the contract entered into between the appellant, James J. Deem, and his father, Philip Deem, now deceased, on the 29th of December, 1863, for the sale and purchase of the real estate of the latter, as well as the deed from the latter to the former, made in pursuance of said contract on the 20th day of February,. 1864. The appellant resists the bill, and claims that the contract is a just and valid one, was fairly and honestly entered into, without any fraud or imposition on 'his part, and was founded on adequate consideration. And also insists that the' deed is, in like manner, free from objection, and valid. First as to the deed:
The original deed, upon a writ of certiorari, was brought, before us for our personal examination. From an inspection of it, as well as from the testimony in the cause, it appears that extensive erasures and material interpolations were made in the deed after it had been acknowledged by the grantor, Philip Deem. It further appears that these erasures and insertions were made by the scrivener who drew the deed, in the presence, and at the instance of. the appellant, [178]*178but not in the presence of the grantor, Philip Deem; and it does not appear that the latter ever assented to the same, or saw the deed after such changes had been made in it. In my view, the erasures and interlineations thus made were sufficient to vitiate the deed, and it must therefore be held null and void. 2 Par. on Contract, p. 223-4 (note q); Moore, &c., vs. Beckham, Lessee, 4 Binn., 1; Steele, Lessee, vs. Spencer and others, 1 Peters R., 552.
Second: How stands the case upon the contract ?
It was earnestly maintained by the counsel for the appellant, that the contract, at least, was free from objection, and ought to be enforced in a court of equity as against the heirs of Philip Deem. There is a great deal of conflicting testimony in the record, touching the capacity or competency of said Deem to make such contract or to execute the deed. It is shown that at the date of the contract, Philip Deem was about seventy-nine years of age, was diseased, and both his physical and mental powers thereby impaired, and in the opinion of many of the witnesses, he had no legal capacity to make such a contract; and instances of his sayings and conduct about the time are given by them, which would seem to be wholly incompatible with a sane mind or legal competency to make a contract. But the weight of the whole testimony on this point, I think, preponderates in favor of the appellant, and if the case is to be determined alone on the question of the capacity of said Deem to make a contract, I would think the decree rendered erroneous.
It is charged in the bill, however, and was insisted on in the argument, that the contract in question was not voluntary and binding on the part of Philip Deem, but was procured by James J. Deem by means of an improper influence exercised over the mind of the former. While there is no positive evidence found in the record to establish the charge of undue influence on the part of James J. Deem, and while, if the case was to turn solely on this question, the evidence might be insufficient to satisfactorily prove such charge, yet, in my judgment, there are facts and circumstances surrounding the case which are well calculated to awaken grave suspicion as to the fairness of the contract, and the means by which it was procured. In considering the question of undue influ: [179]*179ence exercised over a party making a contract, conveyance or will, it should always be kept in view that it rarely happens that such improper influence can be established by direct or positive evidence. In its nature it is scarcely susceptible of such proof, but is rather to be inferred or deduced from the established facts and circumstances surrounding the case, that such influence, though often unseen and silently exerted, may nevertheless be most potent and effective to accomplish the purpose of the party exercising it.
The facts and circumstances, in my view, clearly tend in this direction. Up to the time that James J. Deem moved into the house with his father, it does not appear that he had ever expressed any dissatisfaction with any of his other children or grandchildren, or indicated any disposition or purpose to make any distinction or preference between them in the disposition of his estate. But on the contrary, it is shown by the testimony that he had declared that he never would do so, or convey or part with any of his estate during his life; and that he was incompetent to make as good a disposition of his property as the lato would make, &c. Now, it is a pregnant-/aci that not very long after the son had so removed in the house with him, and took charge of him and his property, a radical change was wrought in the old man’s mind, in respect to his property and his other children and heirs, and he has done precisely what he had so often and so positively declared and vowed he never would do. What superinduced this great change in his mind, can only be conjectured. But it is clear that no actual necessity existed fo:q such a disposition of his property, in order to his comfortable support; and that it was repugnant to his natural feelings arid purposes, as declared before the son occupied such peculiar relations to him. The facts proven by Rutherford, the justice who took the acknowledgment of Philip Deem to the deed in question, as to what occurred at the time, seem to me to be equally suggestive. He says he was sent for “ to fix up some papers,” as he was informed by the son of James J. Deem, who came after him, at the instance of Ms father ; that when he arrived at the house of Philip Deem, he found C. T„ Lewis, the scrivener who wrote the contract and deed, and James J. Deem present, and the former said that uwe have [180]*180been making or writing a deed,” &c. That Philip Deem was •entirely passive and suggested nothing, and only assented to the suggestions and request of Lewis and James J. Deem. That when the deed had been acknowledged (no one being present but the witness and Philip and James J. Deem and Lewis), Lewis immediately remarked, “We have got that thing done, and I think there is only two ways in which it can be broken; one is that they must prove that the old man was not in his right mind, which they cannot do, for the old man has as good a mind to-day as he has had ever since I knew him; and the other is that there has been undue influence used by Jim or somebody else to get him to make this deed.” And Lewis then said, “We will ask him (the old man) and see what he says about it; ” and then asked him twice if James or anyone else had used any undue influence to get him to do what he had done, to which question he replied each time, “Yes, there has;” and James then asked him about the same question, saying, he don’t understand you, to which he replied, “ No.” Although the effort to impeach Lewis must, from the testimony, be regarded as a failure, his conduct on this occasion I think, is significant, and calculated to impair the force or weight of his testimony. He certainly manifested an unusual degree of interest in the transaction, and exhibited no little bias in favor of James J. Deem; and his feelings and actions can only be explained upon the ground that he had misgivings as to the fairness
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BerKsi-iire, P.
The object of the bill filed by the appellees against the appellant and others, in the circuit court of Wood county, was to impeach and set aside, as fraudulent, the contract entered into between the appellant, James J. Deem, and his father, Philip Deem, now deceased, on the 29th of December, 1863, for the sale and purchase of the real estate of the latter, as well as the deed from the latter to the former, made in pursuance of said contract on the 20th day of February,. 1864. The appellant resists the bill, and claims that the contract is a just and valid one, was fairly and honestly entered into, without any fraud or imposition on 'his part, and was founded on adequate consideration. And also insists that the' deed is, in like manner, free from objection, and valid. First as to the deed:
The original deed, upon a writ of certiorari, was brought, before us for our personal examination. From an inspection of it, as well as from the testimony in the cause, it appears that extensive erasures and material interpolations were made in the deed after it had been acknowledged by the grantor, Philip Deem. It further appears that these erasures and insertions were made by the scrivener who drew the deed, in the presence, and at the instance of. the appellant, [178]*178but not in the presence of the grantor, Philip Deem; and it does not appear that the latter ever assented to the same, or saw the deed after such changes had been made in it. In my view, the erasures and interlineations thus made were sufficient to vitiate the deed, and it must therefore be held null and void. 2 Par. on Contract, p. 223-4 (note q); Moore, &c., vs. Beckham, Lessee, 4 Binn., 1; Steele, Lessee, vs. Spencer and others, 1 Peters R., 552.
Second: How stands the case upon the contract ?
It was earnestly maintained by the counsel for the appellant, that the contract, at least, was free from objection, and ought to be enforced in a court of equity as against the heirs of Philip Deem. There is a great deal of conflicting testimony in the record, touching the capacity or competency of said Deem to make such contract or to execute the deed. It is shown that at the date of the contract, Philip Deem was about seventy-nine years of age, was diseased, and both his physical and mental powers thereby impaired, and in the opinion of many of the witnesses, he had no legal capacity to make such a contract; and instances of his sayings and conduct about the time are given by them, which would seem to be wholly incompatible with a sane mind or legal competency to make a contract. But the weight of the whole testimony on this point, I think, preponderates in favor of the appellant, and if the case is to be determined alone on the question of the capacity of said Deem to make a contract, I would think the decree rendered erroneous.
It is charged in the bill, however, and was insisted on in the argument, that the contract in question was not voluntary and binding on the part of Philip Deem, but was procured by James J. Deem by means of an improper influence exercised over the mind of the former. While there is no positive evidence found in the record to establish the charge of undue influence on the part of James J. Deem, and while, if the case was to turn solely on this question, the evidence might be insufficient to satisfactorily prove such charge, yet, in my judgment, there are facts and circumstances surrounding the case which are well calculated to awaken grave suspicion as to the fairness of the contract, and the means by which it was procured. In considering the question of undue influ: [179]*179ence exercised over a party making a contract, conveyance or will, it should always be kept in view that it rarely happens that such improper influence can be established by direct or positive evidence. In its nature it is scarcely susceptible of such proof, but is rather to be inferred or deduced from the established facts and circumstances surrounding the case, that such influence, though often unseen and silently exerted, may nevertheless be most potent and effective to accomplish the purpose of the party exercising it.
The facts and circumstances, in my view, clearly tend in this direction. Up to the time that James J. Deem moved into the house with his father, it does not appear that he had ever expressed any dissatisfaction with any of his other children or grandchildren, or indicated any disposition or purpose to make any distinction or preference between them in the disposition of his estate. But on the contrary, it is shown by the testimony that he had declared that he never would do so, or convey or part with any of his estate during his life; and that he was incompetent to make as good a disposition of his property as the lato would make, &c. Now, it is a pregnant-/aci that not very long after the son had so removed in the house with him, and took charge of him and his property, a radical change was wrought in the old man’s mind, in respect to his property and his other children and heirs, and he has done precisely what he had so often and so positively declared and vowed he never would do. What superinduced this great change in his mind, can only be conjectured. But it is clear that no actual necessity existed fo:q such a disposition of his property, in order to his comfortable support; and that it was repugnant to his natural feelings arid purposes, as declared before the son occupied such peculiar relations to him. The facts proven by Rutherford, the justice who took the acknowledgment of Philip Deem to the deed in question, as to what occurred at the time, seem to me to be equally suggestive. He says he was sent for “ to fix up some papers,” as he was informed by the son of James J. Deem, who came after him, at the instance of Ms father ; that when he arrived at the house of Philip Deem, he found C. T„ Lewis, the scrivener who wrote the contract and deed, and James J. Deem present, and the former said that uwe have [180]*180been making or writing a deed,” &c. That Philip Deem was •entirely passive and suggested nothing, and only assented to the suggestions and request of Lewis and James J. Deem. That when the deed had been acknowledged (no one being present but the witness and Philip and James J. Deem and Lewis), Lewis immediately remarked, “We have got that thing done, and I think there is only two ways in which it can be broken; one is that they must prove that the old man was not in his right mind, which they cannot do, for the old man has as good a mind to-day as he has had ever since I knew him; and the other is that there has been undue influence used by Jim or somebody else to get him to make this deed.” And Lewis then said, “We will ask him (the old man) and see what he says about it; ” and then asked him twice if James or anyone else had used any undue influence to get him to do what he had done, to which question he replied each time, “Yes, there has;” and James then asked him about the same question, saying, he don’t understand you, to which he replied, “ No.” Although the effort to impeach Lewis must, from the testimony, be regarded as a failure, his conduct on this occasion I think, is significant, and calculated to impair the force or weight of his testimony. He certainly manifested an unusual degree of interest in the transaction, and exhibited no little bias in favor of James J. Deem; and his feelings and actions can only be explained upon the ground that he had misgivings as to the fairness of the transaction, and wished to aid and sustain James J. Deem, in case of threatened or anticipated litigation with the other heirs of his father, by securing in advance, evidence to meet the charges that might be made as to the capacity of the grantor, or undue influence exercised over him. Another significant fact proved by Rutherford is, that James J. Deem wished him to keep the transaction quiet for a while, in order that the other heirs might not know what was going on, as he did not wish them to know about it. As to the consideration upon which the contract was founded, it purports to be solely a valuable one, and must be considered in that light. That it was a full and adequate consideration, cannot be maintained; for it clearly appears from the testimony that the estate of Philip Deem, which it is claimed he sold to [181]*181James J., was worth at the time about (averaging the testimony) six thousand dollars, and that the use or income of the same was ample for the said Philip’s comfortable maintenance and support during his life. Now, while mere inadequacy of price or consideration is not of itself sufficient to set aside or annul'a contract, yet such consideration may be so completely .and grossly so, that a court of equity will grant relief against it by rescinding it altogether. The degree of inadequacy to produce such a result is not well defined or easy to determine, and the precise boundary between the two classes of cases is not well settled. It has been said that to induce a court of equity to annul a deed or contract on account of inadequacy of consideration, it must be so gross that upon first blush it “ shocks the conscience ” and produces an exclamation of surprise and reprobation in indifferent persons. We have before us the case of a man in his extreme old age, physically and mentally impaired by age and disease, and tending, to say the least, strongly to mental and bodily imbecility, making a contract by which, without any necessity, and to the disinheritance of his other children and heirs, he sells his whole estate in fee simple, worth, as we see, some six thousand dollars, the consideration being his maintenance and support for the very few brief years remaining to him; while it is shown that the use or income of the estate contracted to be sold was fully equivalent to such maintenance and support, the same being the only consideration paid or to be paid by the grantee of such estate.
It seems to me, if such a case should fail to shock the senses ■and to produce exclamations of surprise and reprobation in indifferent persons, it would be difficult to suggest one that could produce such a result. .Upon the whole case, therefore, I must concur in the opinion of the learned judge of the circuit court, in holding that such a case as the one before us ought not to be approbated or permitted to stand in a court of conscience.
The decree complained of must be affirmed, with costs and .damages.
The, other judges concurred.
Decree affirmed.