Beavers v. Bess, 8733.

• Docket Nº: No. 8733.
• Citation: 108 N.E. 266, 58 Ind.App. 287
• Case Date: March 24, 1915
• Court: Court of Appeals of Indiana

58 Ind.App. 287
108 N.E. 266

BEAVERS et al.
v.
BESS et al.

No. 8733.

Appellate Court of Indiana, Division No. 2.

March 24, 1915.

Appeal from Circuit Court, Hancock County; Earl Sample, Judge.

Suit by Margaretta Beavers and another against Cora D. Bess and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

J. L. Shelton, of Knightstown, and Forkner & Forkner, of New Castle, for appellants. Clarence M. Brown, of New Castle, and Tindall & Tindall, of Shelbyville, for appellees.

MORAN, J.

Appellants sought to set aside the conveyance of a certain tract of real estate in Henry county, Ind., held by the appellee, Cora D. Bess. Judgment was rendered against appellants in the Hancock circuit court, where the cause had been venued. Appellants appeal from this judgment, and assign as error the overruling of the motion for a new trial.

The complaint, in substance, alleges: That one John M. Beavers departed this life March 23, 1912, intestate, in the county of Henry and state of Indiana, and left surviving him appellant Margaretta Beavers, his widow, and appellant Leota C. Burch, his daughter, as his sole and only heirs. Upon the death of John M. Beavers all of his property, both real and personal, descended to the appellants in common. On February 10, 1912, John M. Beavers was the owner and in possession of 30 acres of real estate in Henry county, Ind. And that on that date, and

[108 N.E. 267]

for a long time prior thereto, he was a person of weak and unsound mind, easily influenced, and prejudiced against his family and friends. Appellees some time prior to said date commenced to poison the mind of John M. Beavers against his wife and child, and by false and fraudulent statements induced and caused him to believe that they cared nothing for him, and that appellees were in fact his friends; and by fraudulent protestations of friendship and kindness and affection for him obtained over him an undue and fraudulent influence by reason of the weak and unsound condition of his mind. Appellees, on February 10, 1912, caused and procured John M. Beavers to execute a deed of conveyance to appellee Cora D. Bess, to the real estate heretofore mentioned. And that at the time of the execution of the deed he was of unsound mind, and that the same was procured by fraud, and was void and of no effect. Appellants disaffirmed the deed on September 26, 1912, and requested a reconveyance to them as the surviving heirs of John M. Beavers. Appellants are the owners and entitled to the possession of the land, and appellees' claim to the same is unlawful, wrongful, and without right. The deed should be set aside and declared null and void, and appellants should recover possession of the land and the title should be quieted and set at rest. An answer of general denial was addressed to the complaint, with the further agreement that all matters of defense should be admitted without special pleadings.

The causes assigned in the motion for a new trial are: (1) That the finding and decision of the court is not sustained by sufficient evidence; (2) the finding and decision of the court is contrary to the evidence; and (3) the finding and decision of the court is contrary to law.

The questions presented by the motion for a new trial are numerous; and it will be convenient in presenting the same to classify them under two general propositions: (1) Was John M. Beavers a person of unsound mind at the time he conveyed the real estate in question to appellee Cora D. Bess, the wife of her coappellee, Red Bess, and was the execution of the deed to the real estate procured by fraud and undue influence? (2) Was John M. Beavers legally divorced from appellant Margaretta Beavers on February 10, 1912, the date of the execution of the deed to appellee, Cora D. Bess?

As to the first proposition, the evidence briefly discloses that John M. Beavers, together with his wife and daughter, appellants herein, moved from the state of Illinois to Knightstown, Ind., in 1892. Before moving to this state he inherited considerable property from his ancestors in Illinois, and a short time after he settled in this state some money came into his hands by reason of the sale of his wife's property in Illinois. With this money he purchased what was known as the Ogden mill, an old water mill at Ogden, Ind. His judgment in investing his money was not good, and his money and property gradually dwindled away until he was reduced to want. He was careless in his manner of living, and queer and eccentric in his disposition. He and his wife became estranged some time during the year of 1903; she went to live with her daughter, Leota C. Burch, her coappellant, in Franklin county, Ind. After his wife left, he visited her at various times at his daughter's, but the visits finally grew less frequent, and for several years prior to his death, it appears as if they saw each other very seldom. After the home was broken up, he spent part of the time at the home of appellee Cora D. Bess, who was no relation to him. A part of the time he maintained a very crude and rustic home of his own, which consisted of one small room, poorly furnished. Appellee Cora D. Bess, seemed to look after his wants, did his washing and ironing and furnished his food from time to time. During the year 1911, his brother, who was a person of unsound mind, died in the state of Illinois, and John M. Beavers inherited considerable money from him. Upon receiving the same he invested in the neighborhood of $2,000 in an outfit for the drilling of oil wells, and made other investments of like character. Part of the money was invested in purchasing the land, which he afterwards deeded to the appellee Cora D. Bess. Frequently before receiving the money from his brother's estate, he stated to several of his friends and associates that appellee Cora D. Bess had been very kind to him, and stated at the time of the purchase of the real estate that he wanted to reward her for her kindness. At the time he conveyed the real estate to her, it was understood, in a general way, that he was indebted to her in the sum of $500 for the attention she had given to him during the many years prior thereto, and this was a part of the consideration for the execution of the deed. It was likewise stated in the deed that she was to maintain and support him during his natural life and pay all doctor bills and expenses, including that of his last sickness and funeral expenses. November 21, 1908, he procured a divorce in the Henry circuit court from his wife, notice being had by publication. February 15, 1912, his wife brought a suit to set aside the decree of divorce, within a few days after the execution of the deed in controversy. On April 4, 1912, the body of John M. Beavers was found in a little one-room building on the lands in question, with a gunshot wound in his left breast, and a note was found indicating that he had taken his own life.

[1] There is a large volume of evidence disclosing the life and character of John M. Beavers for a period of many years prior to his death. Quite an array of witnesses expressed their opinions upon facts stated that he was a person of unsound mind on the date

[108 N.E. 268]

of the execution of the deed of conveyance to the appellee Cora D. Bess, and likewise a number of witnesses expressed their opinions upon facts stated that he was a person of sound mind. Taking the evidence as a whole upon the subject of the soundness or unsoundness of mind of the deceased, and giving to it its most favorable construction in behalf of the appellants it discloses that there is a sharp conflict in the evidence upon this subject. This court will not weigh conflicting parol evidence, either in a suit in equity or an action at law. The decision of the trial court upon the weight of conflicting evidence under such circumstances is conclusive on appeal. Over v. Dehne, 38 Ind. App. 427, 75 N. E. 664, 76 N. E. 883;Parkison v. Thompson, 164 Ind. 609, 73 N. E. 109, 3 Ann. Cas. 677;United States, etc., Paper Co. v. Moore, 35 Ind. App. 684, 72 N. E. 487, 74 N. E. 1094;Barnes v. Stock, 51 Ind. App. 640, 100 N. E. 98.

[2] Taking all of the evidence that has any tendency whatever to throw light upon the subject of undue influence and fraud, it discloses no more than that appellee Cora D. Bess and her family were kind to John M. Beavers during the years of his adversity, and that he had a desire to, and did when property came into his hands, reward Mrs. Bess for her kindness to him. The deed executed by John M. Beavers to the appellee Cora D. Bess was not invalid by reason of unsoundness of mind, undue influence, or fraud. The conclusion reached upon this phase of the case disposes of the interest in the real estate claimed by the appellant Leota C. Burch, daughter of John M. Beavers. The deed in controversy carried all the right, title, and interest John M. Beavers had in and to the real estate to the appellee Cora D. Bess.

The second proposition, viz., was John M. Beavers legally divorced from appellant Margaretta Beavers at the time he conveyed the real estate in controversy to appellee Cora D. Bess? presents a more serious question. If the divorce proceedings were void at the time he disposed of the real estate as aforesaid, then upon his death his wife's inchoate interest ripened, and by reason of her marital rights she became a tenant in common with the appellee Cora D. Bess. On June 9, 1908, John M. Beavers instituted an action for divorce in the Henry circuit court against the appellant Margaretta Beavers. By mistake the summons was sent to the city of Franklin in Johnson county, Ind., when it should have been sent to Franklin county, Ind., where appellant was residing with her daughter. The summons was returned unserved. On October 7, 1908, the clerk of the Henry circuit court caused to be published a nonresident notice. The record discloses that an affidavit was filed by John M. Beavers, stating that his wife,...