Kadogan v. Booker

66 S.E.2d 297, 135 W. Va. 438, 1951 W. Va. LEXIS 70

• Court: West Virginia Supreme Court
• Decided: March 1, 1951
• Docket: 10302
• Status: Published

Opinions

Given, Judge:

This appeal involves the correctness of the ruling of the Circuit Court of Raleigh County in setting aside a deed executed October 13, .1948, by Laura Swain, a widow, conveying unto Christopher C. Booker Lot No. 22 of Section 24 of the Lilly Land Company Central Addition to the City of Beckley, and Lot No. 1 of Section 25 of that addition. Lot No. 22 was acquired by Laura Swain by direct purchase and Lot No. 1 was acquired by her under the will of her husband, Harrison Swain, who died September 7, 1948. A small frame dwelling situated on Lot. No. 1 was occupied by Harrison Swain and Laura Swain as their home until the time of his death, and thereafter by her until her death, November 17, 1948.

. The bill of complaint charges that Booker, knowing that Laura Swain was sick and enfeebled in body and mind, corruptly contrived, schemed, and with intent to defraud, did, by persistent and undue persuasion, importunity and false promises, induce Laura Swain to execute the deed, and that she did not know the true import or meaning of her acts; that the “purported deed was not the act and deed of said Laura Swain by her free agency, but that the same was procured by said Christopher C. Booker through the corrupt, fraudulent and dishonest practices and means aforesaid, by which the will and intent of said Laura Swain, were, by said Christopher C. Booker, wholly overpowered and controlled”; and that Booker did not pay or give unto Laura Swain any consideration whatsoever for the conveyance.

The deed recites that Laura Swain reserved a life estate in the property conveyed, and the consideration therein recited is “* * * the sum of One ($1.00) Dollar, cash in hand paid by the party of the second part to the party of the first part, and in further consideration of the said party of the second part agreeing to make the necessary repairs upon the real estate of the said' party of the ' first part hereinafter described, and other considerations hereinafter mentioned, * *

At the date of the execution of the deed Laura Swain was approximately seventy-five years of age, had been blind for several years, and was practically deaf. She was suffering from “malignant hypertension”, a condition involving the “heart, blood’ vessels and kidneys, with excessive high blood pressure, with general arterial sclerosis, and with a degenerative condition of the kidneys”, as testified to by Dr. A. D. Belton. Dr. Belton also testified that “* * * such a condition may or may not. affect an individual’s mentality. It would depend on just how well the organs function in spite of the degenerative condition. And if the kidneys degenerate to the point where they fail to secrete especially the nitrogenous substances of the body, there usually is mental deterioration along with it, but there are quite a number of individuals who can have this same type of things, and some I have under observation at present, who don’t show any mental deterioration.” He also stated that “with a condition of this type, there is a gradual deterioration”, and that Laura Swain had been suffering with such ailments for at least fourteen years. Her husband died about two months before the date of the deed. They had no children, and the plaintiffs, Delena Kadogan and George Thornton, sister and brother of Laura Swain, were her next of kin.

The sister and her daughter, Mattie Swain, residents of Illinois, came to the Laura Swain home immediately after the death of Harrison Swain and remained with her until after the execution of the deed. Apparently the relatives of Laura Swain were attempting to find some person who would live in the Laura Swain home and furnish her necessary care and assistance. Booker, about seventy years of age, a resident of Washington, D. C., and a distant relative of Laura Swain, came to the Frank Swain home, where Laura Swain was then staying, about one week before the date of the deed. The matter of the care of Laura Swain was apparently discussed by the relatives of Laura Swain and Booker, and on October 13, 1948, Booker, with J. S. Butts, an attorney at law of Beckley, came to the home of Frank Swain, with the deed already written, and, the deed having been read to Laura Swain, she affixed her mark thereto, with the assistance of Mr. Butts, who, as a notary public, certified her acknowledgment thereof.

When asked whether Laura Swain understood the transaction, Fannie Swain, present at the time of the execution of the deed, stated:' “I don’t think she did fully, because at the time, during the time that he read it to her, she would just shake her head, or say, !uh-uh.’ When asked what Booker was doing at the time the deed was being executed, this witness stated: “Well, he was just patting her. She said, What is this?’ He was just patting her on the shoulder, and told her everything was going to be all right.” Mattie P. Swain, present at the time of the execution of the deed, testified: “Well, I couldn’t say she understood it all, No, sir.' You see, it was read. She was deaf, and hard to understand. Some of the things she said she understood, some of the things she didn’t.” J. B. Swain was asked: “She told you at the time she signed the papers she didn’t know what she was doing?”; and his' answer was, “That’s right.” Mansion Clark, who lived near the home of Laura Swain and saw her almost daily, asked her if she had conveyed her property to Booker and testified that, “She told me she hadn’t, and I told her she had, and she said, ‘No, I haven’t,’ so I said, ‘Well, you go to Lawyer Butts and ask him,’ and she called him and he told her ‘yes,’ and she said, T aint done no such a thing,’ * * The attorney was consulted concerning the matter, and apparently wrote Booker, who had returned to Washington. Mattie P. Swain testified that she later, with Delena Kadogan, went to the attornej'-’s office concerning the matter, and that they read a letter from Booker, and that “The contents of the letter read something like this, said, ‘Mr. Butts, in receipt of your letter concerning Mrs. Laura Swain, about — concerning Mrs. Laura Swain’s property.’ He said, ‘It is immaterial to me. If .she doesn’t want me to have the property I don’t want it, and I will turn it back over to her.’ It seems that Mr. Butts had written him a letter. He said Mrs. Swain wanted her property back, you see, because he hadn’t stayed in the house, as he had promised her. That was the letter. So when I went to Mr. Butts to get the letter Mr. Butts said he couldn’t find it, because he hunted the letter. We never saw it again. But he said the letter was misplaced, and he hadn’t been able to find it.” Delena Kadogan testified to the same effect. The attorney did not testify, and Booker did not mention the letter in his testimony.

It seems clear from the evidence that Booker understood that he was to care for Laura Swain at her home for the remainder of her life. Mattie P. Swain was asked: “Now, at that time did you and your mother ask Mr. Booker to take care of Laura Swain?”, to which she answered: “We didn’t ask him. He told he — said, T will stay here and take care of Laura,’ and we said, ‘Well, if you will do that all right then. That will be fine if it is satisfactory with Laura.’ ” This witness was asked about a paper being read at Mr. Butts’ office and stated: “Well, I don’t remember just what it was all about, but it was concerning Laura Swain’s property being turned over to him providing he stayed in the home and took care of her her lifetime. That was the subject of it.” Fannie Swain was asked: “Why did she want it (the property) back?”,, to which she answered: “Well, because Mr. Booker was supposed to have stayed in her home and took care of her, and didn’t. She said she wanted it back, and she said she didn’t want him to have anything she had.”

Within about a week after the deed was executed Booker returned to Washington and did not see Laura Swain again during her life. He made no provision for her care in his absence and apparently had no intention of returning to her home, or to in any way provide for her care. Part of the consideration for the conveyance, as recited in the deed, was that Booker was to “make necessary repairs' to the property”, but nothing was done by him toward making any repairs, unless his assistance to three other persons in painting two rooms and a hallway in the residence be so considered. As to why he left the home of Laura Swain, Fannie Swain testified: “Well, he got mad at Miss Laura. That is why he left.” This witness also testified: “Well, it don’t look to me like he ever did anything for her. He didn’t do anything for her. Q. Did you ever hear him curse, or say anything out of the way? A. Yes. He told her the night she had asked him for her money, well then, when she asked him for it at the table why he got angry with her, and told her he didn’t want a ‘d’ thing she had.” It is not disputed that J. B. Swain and his wife lived with Laura Swain at her home and rendered her necessary care and assistance from the time of the execution of the deed until her death.

Mattie P. Swain, fifty-two years of age and a niece of Laura Swain, often visited in the Laura Swain home and was at the home for about two weeks after the death of Harrison Swain. She knew of the physical condition of Laura Swain and, in trying to describe her mental condition, she testified: “Q. I believe you stated that some of the time she would talk to herself. A. Some of the time she did. She would go into her room and sit down and talk to herself, and sometimes she would just sit in the room where we were talking to herself, and we would ask her if she was speaking to us, and she said, ‘No. I am just talking to myself.’ Did the remarks, or what she said, make any sense? A. No. What she said did not make sense, what she was talking about. Just kinda mumbling, you know, to herself. Just mumbling. Incoherent, so that we couldn’t really understand just what it was all about.”

Royal C. Booze, aged seventy years, a former school teacher, who knew Laura Swain for years, lived near her home and saw her frequently during September, October and November of 1948, testified to the effect that Laura Swain could not, in his opinion, understand “the meaning of the different instruments”, meaning the deed; that “She was just as helpless as a baby”; that she was not “physically, and somewhat, I might use the word ‘mentally’,” capable of doing anything for herself, and that she could not hold an intelligent conversation with him.

Fannie Swain, wife of the brother of Harrison Swain, who lived close to the home of Laura Swain and was familiar with her physical and mental condition and visited her often, testified that Laura Swain “didn’t act as if she was at herself”; and that Laura Swain told her, after the deed was executed, that she didn’t know what she was doing. Emma J. Allen, a retired school teacher who was well acquainted with Laura Swain, was a close friend and visited her often over a period of forty years, and “pretty often” during 1948, testified that, in her opinion, Laura Swain “was almost demented”; that she was not able to repeat what she was told; and that, in her opinion, Laura Swain was not “capable of understanding business transactions”; that the mental condition of Laura Swain progressed rapidly after the death of her husband; and that she visited Laura Swain- “about two weeks before she died. I don’t know whether she knew I was there or not. It didn’t look like she did, because she went out from where I was and wouldn’t talk to me, and we were very good friends. * * * She didn’t ■seem to know it was me. She couldn’t call my name, and she didn’t seem to know it.”

Mansion Clark, who lived near the Laura Swain home, saw her almost every day over a period of twenty-two years and observed her physical and mental condition, testified to the effect that “* * * she didn’t practically have any mind at times”; that her mental condition was “bad”, and that “* * * she acted like at times her mind was off. She talked to herself, and she didn’t understand what you would be asking her, different questions”, and that her mind was worse after the death of her husband. Azzie Jones, who resided close to the Laura Swain home, visited the home often during a period of nineteen years, talked with her almost every day, and was familiar with her physical and mental condition, was asked how her mental condition after the death of her husband compared with her mental condition prior to that time, and stated: “Well, not very good, because it seemed to me she was getting more of a mental sickness. * * * .” When asked if he believed the mental condition of Laura Swain * * was such that she would understand and comprehend business transactions, the witness answered: ‘I do not.’ ”

These and other witnesses testified concerning other facts and circumstances which possibly indicate mental incompetency of Laura Swain at the time of the execution of the questioned deed. Some of the statements of these witnesses indicate that Laura Swain, at the time of the execution of the deed, possessed sufficient mental capacity to understand and comprehend business transactions. This is especially true as to the evidence of Dr. Belton, who stated that in his opinion she did possess sufficient mental capacity to execute a deed. No witness was introduced on behalf of the defendants except the defendant Christopher C. Booker, and he gave no testimony relating to the mental capacity of Laura Swain, to the execution of the deed, to the consideration for the conveyance, to any understanding as to the care and assistance to be rendered Laura Swain by him, or to any material issue of fact. His failure to testify as to such facts, in part at least, is, of course, justified by the provisions of Code, 57-3-1, as amended. The force of that statute, however, does not relieve defendants of the necessity of producing evidence to overcome any fact established prima facie by evidence of plaintiffs.

The evidence was heard by the trial chancellor in open court and he found: “* * * that Laura Swain did not have the mental capacity to properly execute, and was not capable of comprehending or understanding her acts and did not so comprehend or understand her acts at the time she executed the deed conveying the property in question to Christopher C. Booker on date of October 13, 1948, and which deed is of record in Deed Book No. 265 at page 191, in the Clerk’s Office of the County Court of Raleigh County, West Virginia.

“The court further finds that the defendant, Christopher C. Booker, did exert and exercise undue influence upon Laura Swain at the time she executed said deed on October 13, 1948.

“The court further finds that there was inadequate consideration for said conveyance and also finds that there was a failure of consideration on behalf of Christopher C. Booker for said conveyance.” In accordance with the findings the court entered the decree complained of, setting aside and holding the deed in question to be void. This Court must determine whether the evidence sufficiently supports the finding of the trial court. The view the Court takes of the evidence relating to mental incapacity of the grantor makes it unnecessary to consider any other question involved.

There-exists-a presumption that a grantor in a deed conveying real estate was mentally competent to execute the deed. Ellison v. Lockard, 127 W. Va. 611, 34 S. E. 2d 326. Mere infirmity of mind and body is not sufficient to overcome such presumption. Burkle v. Abraham, 112 W. Va. 257, 164 S. E. 150. The time of the execution and delivery of the instrument is the time at which the question of mental capacity is to be determined. Jordon v. Cousins, 128 W. Va. 648, 37 S. E. 2d 890. Evidence of the scrivener, notary public or subscribing witnesses to a deed is entitled to peculiar weight. Burkle v. Abraham, supra. It is well settled, however, that a lay witness, who has had an opportunity to observe the grantor, may give an opinion as to his mental capacity, if the witness details facts supporting the opinion. McCary v. Traction Co., 97 W. Va. 306, 125 S. E. 92; Freeman v. Freeman, 71 W. Va. 303, 76 S. E. 657. Less evidence is required to establish incompetency where a grantor is aged, and enfeebled in body and mind. Hardin v. Collins, 125 W. Va. 81, 23 S. E. 2d 916. In the opinion in the Collins case, page 87 West Virginia Reports, the Court quoted with approval a statement from 26 C. J. S., Deeds, Section 54, page 268, as follows: “Inadequacy of consideration is persuasive, although not conclusive, evidence of mental incapacity, and where mental weakness and inadequacy of' consideration co-exist they may together furnish ground for invalidating a deed.” In the same section of 26 C. J. S. it is also stated: “Where in addition to mental weakness of the grantor it further appears that inequitable circumstances attended the execution of the deed, the courts will the more readily intervene to set it aside.” See Morris v. Williams-Garrison, 99 W. Va. 140, 128 S. E. 78.

As indicated by the evidence detailed above, there can be no doubt of the greatly weakened mental condition of the grantor. She was blind, and practically deaf. She was afflicted with acute physical infirmities from which she had suffered for more than fourteen years, which apparently caused .her death shortly thereafter. Several witnesses who were her close neighbors, and who detailed facts justifying their views, stated that, in their opinions, she was not capable of executing the deed. If the only consideration were the one dollar and repairs to the dwelling, it would clearly be inadequate. If the care of grantor were part of the consideration for the conveyance, as contended by plaintiffs, and which seems probable, the agreement was not kept on the part of the grantee and apparently was not intended to be kept by him,' for he returned to Washington about a week after the execution of the deed without having made any provision for Laura Swain’s care. In such circumstances we believe the evidence of plaintiffs as to the incompetency of the grantor is plausible and sufficient to support the trial court’s finding of mental incapacity.

In Coulter v. Coulter, 127 W. Va. 710, 34 S. E. 2d 330, this Court held:

“Where the only error assigned as a ground for the reversal of a decree is the failure of the evidence to sustain it, unless the evidence opposed to its finding clearly preponderates it will be affirmed.”

We think the following statement of this Court in the opinion in Curtis v. Curtis, 85 W. Va. 37, 46, 100 S. E. 856, is applicable here. “* * * There are many cases in this jurisdiction in which wills and deeds have been attacked for want of capacity upon the part of the grantors therein. One case furnishes very little light in the determination of another. The relationship of the parties and the conditions which surround them are always different, and the motives which actuate men in the transaction of business are so influenced by these peculiar conditions and circumstances that the decision in one case furnishes little assistance in the determination of another. In this case the learned Judge of the trial court has found that Mrs. Smith did not have mental capacity to make this deed, and that the same was procured by undue influence. His findings were based upon a careful review of all the evidence and we will not reverse the same unless convinced that they are not supported by the showing made. We cannot say that in this case.”

The decree of the Circuit Court of Raleigh County is affirmed.

Affirmed.