Barkley v. Barkley
| Decision Date | 27 October 1914 |
| Docket Number | 22,502 |
| Citation | 106 N.E. 609,182 Ind. 322 |
| Parties | Barkley v. Barkley et al |
| Court | Indiana Supreme Court |
From Starke Circuit Court; Francis J. Vurpillat, Judge.
Action by Carl M. Barkley and others against Daniel Barkley, Jr. and others. From a judgment for plaintiffs, the defendant named appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)
Affirmed.
W. C Pentecost, for appellant.
Charles Hamilton Peters and Glenn D. Peters, for appellees.
Daniel Barkley, Sr., the father of appellee, in his lifetime was the owner of 80 acres of land in Starke County. On November 3 1900, conveyance was made of this land to appellant by a deed purporting to have been executed by Daniel Barkley, Sr., and Augusta Barkley, his wife, the mother of appellant. Daniel Barkley, Sr., died September 2, 1901, and his widow, Augusta Barkley died intestate the year following. They left other children surviving them than appellant, and grandchildren who are children of other children who had died before the parents. Certain of these grandchildren sued appellant to cancel and set aside the deed of November 3, 1900, as to Augusta Barkley because of the alleged fraud of appellant which, it was charged, procured the pretended execution of it by her, and to have one-third of the 80 acres partitioned as the statute of descents would cast the title. To this action of theirs all of the other children and grandchildren were made parties defendant with appellant. All made default but appellant. His demurrer to the complaint which challenged the sufficiency of the facts to state a cause of action, was overruled. He then answered in general denial and by two special answers. Part of the second answer and all of the third were stricken out by the court on motion of plaintiff. There was a trial by the court and a finding that the deed was void as to Augusta Barkley, that appellant was the owner of two-thirds only of the 80 acres by virtue of the deed, that Augusta Barkley took the remaining one-third on the death of her husband and this on her death descended under the statute to her heirs. A judgment ordering partition accordingly was rendered and partition so made. Appellant's motion for a new trial was overruled and he has in this appeal assigned this action of the court together with the rulings on demurrer to the complaint, and on the motions to strike out his special answers as errors for which a reversal of the judgment is demanded.
Omitting other allegations essential to the cause of action attempted to be stated, the allegations of the complaint relied on to establish the nullity of the deed of November 3, 1900, as to Augusta Barkley, through which deed appellant held the land, were in substance that while the deed purported on its face to be signed by her by mark and duly acknowledged she was unconscious and without mental power to know that she was signing a deed or to direct anyone to sign for her or to acknowledge or deliver it and without physical power to sign or deliver it; that she was at that time more than sixty-five years old and then and for many years preceding had been subject to frequent periodical attacks of nervous sickness during which she suffered greatly from headache and lapses into unconsciousness which periods of unconsciousness would frequently continue for three or four days; that at such a time of sickness and unconsciousness which had then persisted for five days appellant, accompanied by a justice of the peace, brought the deed to her home and over the objections of another one of her children took her hand in his and touched the pen with which her alleged mark was made; that so her pretended execution of the deed was consummated without consciousness on her part; that the deed was never read to her and she knew nothing of its contents; that it was without consideration and that its execution was procured by appellant to defraud the other heirs of Augusta Barkley.
The basis of appellant's contention that his demurrer should have been sustained is that the rule applies that the deed of a person of unsound mind, not under guardianship, is only voidable and vests the grantee with title to the real estate involved until disaffirmance by the grantor upon becoming sane or, if that event does not happen prior to the death of the grantor, until disaffirmance by the heirs, and that as no disaffirmance is alleged in the complaint it was fatally defective. The rule as generally and broadly stated in this State is as stated by counsel for appellant. Disaffirmance in such cases is a condition precedent to the right of action. Downham v. Holloway (1902), 158 Ind. 626, 64 N.E. 82, 92 Am. St. 330, and cases there cited; Aetna Life Ins. Co. v. Sellers (1900), 154 Ind. 370, 56 N.E. 97; Ashmead v. Reynolds (1891), 127 Ind. 441, 26 N.E. 80; Schuff v. Ransom (1881), 79 Ind. 458; Nichol v. Thomas (1876), 53 Ind. 42. The facts alleged in the complaint before us, however, if true, and they are admitted to be so for the purposes of the ruling on demurrer, do not bring the case within the rule. The facts here alleged show that Augusta Barkley did no act at all, consciously, intelligently, or otherwise, necessary to the execution of the deed and gave no direction for any one to do any such act for her. And they exclude any conscious, tacit consent that such acts might be done in her behalf. And further it is alleged that there was no consideration for the deed. Under the facts stated there was no more reason for saying that she had executed the deed than there would have been if at the time life had fled her body and her hand which was lifted had been cold in death. Something more is here involved than mere mental incapacity. Under these allegations she did nothing whatever in the way of executing a deed. Everything was done by appellant. The facts averred exclude both a signing and a delivering of the deed by her through her own act or by any one authorized by her. If appellant had not gone to the bedside of Augusta Barkley and gone through the mockery of affixing her signature by touching her hand to the pen, not through her will and physical effort but by his own, but instead had completed the deed out of her presence in the justice's office, by there writing her name and making her mark and procuring the justice of the peace to fill up the certificate of acknowledgment, there would be no room for any pretense that the alleged deed was other than a forgery. There is no legal difference between this supposititious state of facts and those alleged. In either event the alleged deed would be a forgery. It would in no sense be the deed of Augusta Barkley but as to her and those claiming under her a mere nullity and void. Such a contract can not be ratified or confirmed and needs no disaffirmance. Henry v. Carson (1884), 96 Ind. 412, 422; Fitzgerald v. Goff (1884), 99 Ind. 28, 43; Henry v. Heeb (1887), 114 Ind. 275, 16 N.E. 606, 5 Am. St. 613; Caccioppoli v. Lemmo (1912), 152 A.D. 650, 137 N.Y.S. 643; McElwain v. Russell (1890), 11 Ky. L. Rep. 649, 651, 12 S.W. 777; Lenhard v. Lenhard (1883), 59 Wis. 60, 17 N.W. 877; Turner v. Utah Title Ins., etc., Co. (1894), 10 Utah 61, 37 P. 91; Dunlap v. Dunlap (1840), 10 Watts 152; Hepler v. Hosack (1901), 197 Pa. 631, 47 A. 847; 40 Cyc. 214; 10 Am. and Eng. Ency. Law (2d ed.) 338.
But on appellant's contention that the deed here involved is voidable merely and...
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