Boggess v. Boggess
| Decision Date | 05 March 1895 |
| Parties | Boggess et al. v. Boggess et al.; Yates, Guardian, Appellant |
| Court | Missouri Supreme Court |
Appeal from Ray Circuit Court. -- Hon. E. J. Broaddus, Judge.
Affirmed.
C. T Garner & Son, J. L. Farris & Son and J. E. Ball & Hamilton for appellants.
(1) In an action in chancery, it is the duty of the court to look into the evidence and determine from it the rights and liabilities of the parties as to all the matters in litigation. Dale v. Hogan, 39 Mo.App. 646; Suddoth v. Bryan, 39 Mo.App. 653. (2) Facts essential to a right of recovery must be proved by testimony having at least a preponderating influence. Moore v Railroad, 28 Mo.App. 622. (3) The mere fact that a person's mind may be impaired by age or disease does not render him incompetent to make a conveyance, and the true legal test is "the capacity to understand the nature and effect of the transaction." Cutler v Zollinger, 117 Mo. 92; English v. Porter, 109 Ill. 285; Harvey v. Sullens, 56 Mo. 372; 1 Parsons on Contracts [7 Ed.], 383. (4) It is well settled that sanity is the normal condition of the human mind. A man twenty-one years of age is presumed to be capable of making suitable conveyances, disposing of his property, and he who seeks to invalidate it by alleging insanity should prove it. 1 Redf. on Wills [3 Ed.], ch. 3, sec. 5, sub. 13; Taylor v. Wilburn, 20 Mo. 306; Jackson v. Hardin, 83 Mo. 182; Frear v. Williams, 7 Baxter, 550; Brooks v. Barrett, 7 Pick. 94; Higgins v. Carrollton, 92 Am. Dec. 666; Cotton v. Elmer, 6 Am. Rep. 703; Grubs v. McDonald, 91 Pa. St. 236. (5) There is a misjoinder of the causes of action; plaintiffs may unite in the same petition several causes of action, only where they all arise out of the same transaction or transactions, etc., but the cause of action so united must affect all the parties to the action. R. S. 1889, sec. 2040. (6) The petition is also subject to the objection of being multifarious, W. V. Boggess, one of the defendants, having no interest in the matter set forth in the second count in plaintiff's petition. Clark v. Ins. Co., 52 Mo. 273. (7) In equitable actions, the verdict of jury is only advisory, and the appellate court will review the testimony and decide the case according to equitable rules. McElroy v. Maxwell, 101 Mo. 294; White v. Pendry, 25 Mo.App. 542. (8) Chancery regards the infant as a privileged person, and equity will not hold the infant to strict rules of pleading, but will allow him to take advantage of any defense, whether pleaded or not. 10 American Encyclopedia of Law, 692, and authorities there cited. Collins v. Trotter, 81 Mo. 275.
Lavelock, Kirkpatrick & Divelbiss for respondents.
(1) The question of misjoinder comes too late when not raised until after the trial, and especially is this true when not raised until case is presented on appeal. Ashley v. Winston, 26 Mo. 210; Solding v. Bartlett, 35 Mo. 99; Russell v. DeFrance, 39 Mo. 511; Kers v. Bell, 44 Mo. 120; Kate v. Menier, 50 Mo. 158. (2) The petition is not multifarious. Donovan v. Dunning, 69 Mo. 436; Bobb v. Bobb, 76 Mo. 419; Rinehart v. Long, 95 Mo. 396; Waddell v. Waddell, 99 Mo. 347; Vreeland v. Vreeland, 24 A. 551; State v. Foot, 3 S.E. 546; 1 Beach on Mod. Eq. Prac., secs. 125, 129. (3) The declarations of William V. Boggess against his interest were competent in passing upon the validity of the first deed; and were by the instruction of the court limited to that deed alone. This was not error. Schlicker v. Gordon, 19 Mo.App. 479; Koontz v. Coffman, 31 Mo.App. 397; Philibert v. Schmidt, 57 Mo. 212; Babb v. Ellis, 76 Mo. 460; Grace v. Nesbit, 109 Mo. loc. cit. 20, 21. (4) Evidence admissible for any purpose can not be excluded when the only objection made was that it was "incompetent." Prim v. Raboteau, 56 Mo. 407; Shelton v. Durham, 76 Mo. 436; State v. Walker, 98 Mo. loc. cit. 106; Drey v. Doyle, 99 Mo. 459; Jamison v. Bagot, 106 Mo. 240; State v. Adams, 108 Mo. 208; Seligman v. Rogers, 113 Mo. 642; State v. Hunt, 114 Mo. 66; State v. Smith, 114 Mo. 406. (5) The court properly defined what constitutes sufficient mental capacity. Harvey v. Sullens, 56 Mo. 372; Jackson v. Hardin, 83 Mo. 175; Norton v. Paton, 110 Mo. 456; Couch v. Gentry, 113 Mo. 248; Maddox v. Maddox, 114 Mo. 35; Kerr v. Lunsford, 31 W.Va. 659; Converse v. Converse, 21 Vt. 168; Dennet v. Dennet, 44 N.H. 531; Young v. Stevens, 48 N.H. 133. (6) To be valid, a deed must be delivered. To constitute a valid delivery, the dominion over the instrument must pass from the grantor, in his lifetime, with the intent that it pass to the grantee, if the latter assent to it. Huey v. Huey, 65 Mo. 689; Turner v. Carpenter, 83 Mo. 333; Hammerslough v. Cheatham, 84 Mo. 19; Allen v. DeGroodt, 105 Mo. 442; Tyler v. Hall, 106 Mo. 313; Hall v. Hall, 107 Mo. loc. cit. 107; Cazaza v. Cazaza, 92 Tenn. 573; Reichert v. Wilhelm, 50 N.W. (Iowa), 19. (7) The unequal disposition of the property made by the deed may be considered by the jury, in connection with all the other evidence and circumstances, in passing on the mental capacity of deceased. Gay v. Gillilan, 92 Mo. 250; Knox v. Knox, 95 Ala. 495; Lamb v. Lamb, 2 W. Rep. (Ill.) 698. (8) A verdict supported by substantial evidence will not be disturbed on appeal on the grounds that it is against the weight of the evidence. Caruth v. Walters, 91 Mo. 484; Rothchild v. Railroad, 92 Mo. 91; Mathias v. O'Neill, 94 Mo. 520; Schad v. Sharp, 95 Mo. 575; Taylor v. Cayce, 97 Mo. 242; Gordon v. Eans, 97 Mo. 587; Skinker v. Haagsma, 99 Mo. 208; Sayer v. Devore, 99 Mo. 437; Rawlins v. Rawlins, 102 Mo. 563. (9) William V. Boggess being the only party who could raise the question of misjoinder, and he having accepted the judgment of the trial court, the question can not be considered on appeal of other defendants. 1 Beach on Mod. Eq. Prac., secs. 80, 127; Bliss on Code Pleading, secs. 414, 415; Nearen v. Bakewell, 110 Mo. 645. (10) The appellate court will not review the evidence in an equity case, unless all the evidence heard at the trial is preserved and presented in the abstract. Foster v. Nowlin, 4 Mo. 18; Knox v. Sikers, 15 Mo. 235; Douglass v. Stephens, 18 Mo. 362; Carter v. Holman, 60 Mo. 498; John v. Long, 72 Mo. 211; Blount v. Spratt, 113 Mo. 34; Roberts v. Bartlett, 26 Mo.App. 611; Sleet v. Gilmore, 28 Mo.App. 655; Singer Mfg. Co. v. Givens, 35 Mo.App. 602; Rule 7, Supreme Court.
This suit was instituted in the circuit court of Ray county on the fifteenth 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 one hundred and ninety 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 seventy-two acres of land to said Henry P. and James K. Boggess in fee simple. Henry Boggess died on the seventh day of August, 1891. At the date of the first deed Henry Boggess also conveyed to a grandson, Eli Frazier, forty acres of land. These three deeds conveyed all the lands he owned, except one hundred and sixty-three 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 Charles 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 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 wholly 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 fact to a jury.
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