Boggess v. Boggess

• Decision Date: 05 March 1895
• Citation: 127 Mo. 305,29 S.W. 1018
• Parties: BOGGESS et al. v. BOGGESS et al.
• Court: Missouri Supreme Court

29 S.W. 1018

127 Mo. 305

BOGGESS et al. v. BOGGESS et al.

Supreme Court of Missouri, Division No. 2.

March 5, 1895.

ACTION TO SET ASIDE DEED — MENTAL CAPACITY OF GRANTOR — EVIDENCE — INSTRUCTIONS — REVIEW ON APPEAL.

1. As, in an action to set aside a deed on the ground of the grantor's mental incapacity, the circuit court is not bound by the verdict, but may adopt or reject it, the appellate court will consider the evidence only to ascertain whether it was sufficient to support the decree.

2. The grantor in a deed was about 80 years of age, and had been thrifty and energetic, but, about the time the deed was made, there was a marked change in him, he not remembering current events, and several times failing to recognize his daughters. The grantees were two minor grandchildren, and, when the deed was made, their father was attending to the grantor's business, and the grantor died through a giving way of all the vital parts, about two years after the deed was made. At times he remembered making the deed, but did not attach much importance to it, and he entirely forgot about a note for $117 which he held. He failed at times to recognize old friends, and, after promising to give a daughter $300, he forgot about it. For six years before his death he was unable to give a list of his property to the assessors, because he did not remember what property he had, and, when the deed was executed, he was a very feeble and childish old man, and quite petulant. He repeatedly stated that he had worked hard for what property he had, and wanted his children to have the benefit of it. The deed covered a large part of his land, and he had a number of children and grandchildren besides the grantees. He did not seem to have a clear idea as to other deeds made by him, and as to whether he wanted them to be delivered immediately or after his death, or whether they should be destroyed. Held, a finding that he was mentally incapable of making the deed was justified.

3. Where, in an action to set aside deeds of different lands, two defendants are interested in all the lands, and the other defendant is interested only in land covered by one of the deeds, neither of the two defendants can raise the objection of a misjoinder of actions, because the other defendant was not interested in all the property involved.

4. Admissions by a grantee that, when the grantor executed the deed, he was mentally incapable of doing so, are admissible against the grantee, in an action to set the deed aside.

5. Where evidence is admissible as to only one of several defendants, the defendants against whom it is inadmissible cannot complain that the jury were not instructed that they were not affected by the evidence, where no such instruction was asked.

6. In an action to set aside a deed, a charge that it is not necessary to establish the existence of insanity in its technical meaning, but that weakness of intellect from extreme old age, or when the same arises from great bodily infirmity, which disqualifies the party from knowing or appreciating the nature, effect, or consequences of the act he is engaged in, renders the deed void, is proper, where the jury are also instructed that a person who can understand the nature and character of the act he is performing, and understand the extent and value of his property, and the situation of those who have a claim upon his bounty, has sufficient capacity to make a deed.

Appeal from circuit court, Ray county; E. J. Broaddus, Judge.

Petition by Wade Boggess and others against William Vincent Boggess and W. F. Yates, guardian ad litem of Henry P. and James K. Boggess, and others. From a decree for plaintiffs, W. F. Yates, guardian ad litem, appeals. Affirmed.

C. T. Garner & Son, J. L. Farris & Son, and Ball & Hamilton, for appellant. Lavelock. Kirkpatrick & Divelbiss, for respondents.

GANTT, P. J.

This suit was instituted in the circuit court of Ray county on the 15th day of December, 1891, by the heirs at law of Henry Boggess, deceased, to set aside two warranty deeds executed by said Henry Boggess in his lifetime. The first of these deeds was dated May 24, 1889, and purported to convey about 190 acres of land to his son William Vincent for life, remainder in fee to his two children Henry P. and James K. Boggess. The second deed was dated on May 26, 1890, and purported to convey 72 acres of land to said Henry P. and James K. Boggess in fee simple. Henry Boggess died on the 7th day of August, 1891. At the date of the first deed, Henry Boggess also conveyed to a grandson Eli Frazier 40 acres of land. These three deeds conveyed all the lands he owned, except 163 acres of timbered land. The lands in suit are well worth $40 per acre; and the timbered land, $20 an acre. When the above deeds were made, Henry Boggess had four children living, to wit, Wade Boggess, Sallie Graham, Nancy Mulnix, and William V. Boggess, and the following grandchildren, to wit: Alice Boggess, only child of Argyl T. Boggess, a deceased son; Eli Frazier and William H. Frazier, only children of Margaret Frazier, a deceased daughter; Price Boggess, William Boggess, and Charless Boggess, only children of Joel Boggess, a deceased son; and the two defendants Henry P. and James K. Boggess, sons of W. V. Boggess. The petition of plaintiffs, in the first count thereof, contains the following averment: "That at the time the said Henry Boggess undertook and attempted to execute said deed, and convey the premises hereinbefore described to said defendants, he was advanced in years, being then about eighty-five years old, in feeble health, with greatly impaired physical and mental vigor, weak in mind and body, suffered from loss of memory and incapable of transacting his business and of comprehending the extent of his property, and appreciating the rights of those having claims upon his bounty; and by reason of his advanced age, and infirmity of body, and impairment of mind, he had not sufficient mental capacity to make a valid deed, and the deed, therefore, made, though in form, and duly signed, acknowledged, and delivered, is not the deed of said Henry Boggess, deceased, and is without consideration, invalid, and insufficient to pass title in the property attempted to be conveyed from said Henry Boggess to said defendants." The second count in the petition for setting aside the second deed contains substantially the same allegations as to mental incapacity, and further seeks to have said deed canceled for the reason that it was not delivered. It is also alleged in the petition that the real estate attempted to be conveyed by said two deeds was worth about $11,000, and by such transfers, if valid, he would thereby leave some of his children almost wholy unprovided for. The minor defendants were duly served, and Dr. William F. Yates was appointed guardian ad litem.

The circuit court submitted the following issues of facts to a jury: "(1) Did Henry Boggess, at the time of the execution of the deed signed by him, dated May 24th, 1889, being the deed in controversy under the first count of the petition, have sufficient mental capacity to make said deed? (2) Did Henry Boggess in his lifetime make a delivery to Henry P. Boggess and James K. Boggess, or to any one for them, of the deed dated May 26th, 1890, signed by Henry Boggess, being the deed in controversy under the second count in the petition? (3) If the jury find that the deed dated May 26th, 1890, and signed by Henry Boggess was delivered to Henry P. Boggess and James K. Boggess, or to some one for them, the jury will further answer whether at the date of such delivery the said Henry Boggess had sufficient mental capacity to make said deed." And for their guidance gave them the following instructions: "(1) The court instructs the jury that the issue submitted under the first count in the plaintiffs' petition is whether on the 24th day of May, 1889, Henry Boggess was of sufficiently sound mind to render him capable of making the deed read in evidence, of that date. (2) The issue submitted to the jury under the second count in the petition of the plaintiffs is: First. Was the deed read in evidence, dated May 26, 1890, delivered by Henry Boggess to the defendants Henry P. Boggess or James K. Boggess, or to any person for them? Second. Was or was not Henry Boggess of sufficient sound mind to render him capable of making the deed read in evidence, of that date? If the jury find that said deed, dated May 26, 1890, was not delivered to either the grantees therein named, nor to any person for them, then it will not be necessary to pass upon the mental capacity of Henry Boggess to execute the same at the date thereof; but if said deed was delivered, within the meaning of the law, as declared in these instructions, then and in that event the jury must pass on his mental capacity to make such deed on the 26th day of May, 1890. (3) The jury are instructed that, to incapacitate a party from making a contract or execute a deed, it is not necessary to establish the existence of insanity in such a person, in its technical meaning; but they are instructed that weakness of intellect, from extreme old age, or when the same arises from great bodily infirmity, which disqualifies the party from knowing or appreciating the nature, effect, or consequence of the act he is engaged in, works such a disability as to render such a contract or deed void and of no effect in law. (4) The declarations of Henry Boggess, either before or after making the deeds in controversy, are evidence before the jury, in so far as they may throw light upon the mental condition of Henry Boggess, or his feelings or affections, but they are not evidence of the truth of the matters he states. They are admitted as external manifestations of the condition of his affections and feelings. (5) The jury are the judges of the credibility of the witnesses, and of the weight to be given to their testimony. In weighing the evidence the jury should...