Bumgardner v. Corey

• Decision Date: 26 May 1942
• Docket Number: (No. 9316)
• Citation: 124 W.Va. 373
• Court: West Virginia Supreme Court
• Parties: Rena Bumgardner, Committee, etc. v. Sam Corey

124 W.Va. 373

Rena Bumgardner, Committee, etc.

v.Sam Corey

(No. 9316)

Supreme Court of Appeals of West Virginia.

Submitted February 25, 1942.

Decided May 26, 1942.

1. Deeds

"Mere * * * infirmity of mind and body is not sufficient to overcome the legal presumption of mental capacity of the grantor." Point 2, Syl., Burkle v. Abraham, 112 W. Va. 257, 164 S. E. 150.

2. Deeds

Where a grantor in a conveyance of real estate, enfeebled mentally and physically, was induced to make such conveyance by a real estate broker's wrongful threats of litigation to collect a commission, such conveyance was made under duress; and where it further appears that the grantee therein, though not an active participant in the duress, knew of such facts in regard to the transaction that, in the exercise of common prudence and diligence, he should have made investigation, but notwithstanding, chose to rely upon the broker's negotiations therefor, the conveyance will be set aside.

Appeal from Circuit Court, Kanawha County.

Suit by Rena Bumgardner, committee for W. C. Rollins, an incompetent person, against Sam Corey to set aside a deed by the incompetent to the defendant, on ground that the incompetent was induced or coerced into execution of the deed by wrongful threats of litigation, and on ground that he was mentally incompetent at the time. From a decree dismissing plaintiff's bill, plaintiff appeals.

Reversed and remanded.

Rose and Kenna, Judges, dissenting.

M. O. Litz and H. D. Rollins, for appellant. L. Steele Trotter, A. P. Hudson and B. J. Pettigrew, for appellee.

Lovins, Judge:

Rena Bumgardner, committee for W. C. Rollins, an incompetent person, instituted this suit in the Circuit Court of Kanawha County against Sam Corey for the purpose of setting aside a deed executed on November 21, 1936, in which W. C. Rollins was grantor and Corey, the grantee. It is alleged that Rollins was induced or coerced into the execution of the deed by wrongful threats of litigation by V. T. Harrison, Rollins being mentally incompetent at the time. After a full hearing on bill, demurrer, answer and depositions, the trial court denied the relief prayed, for reasons hereinafter set forth, and dismissed plaintiff's bill, from which action of the trial court, plaintiff was granted this appeal.

W. C. Rollins, about sixty years of age at the time of the institution of this suit, was reared on Fisher Ridge in Jackson County. From 1918 until November, 1930, he was employed as a day laborer by the Appalachian Electric Power Company. During the year 1931, he married Cora Pauley and they resided on her farm on Camp Creek in Kanawha County, where, it is alleged, she expended all or the greater part of his life savings, amounting to three or four thousand dollars, in the improvement thereof. It is shown that Rollins suffered for years from a progressive mental deficiency., described as sclerosis of the radial and temporal arteries, the development of which increased while he was at Camp Creek until he became practically blind. In January, 1936, his brother, G. L. Rollins, took him to the home of his sister, Rena Bumgardner, in Jackson County because of his mental and physical condition and the alleged mistreatment by his wife, who, a few days thereafter, lost her life in a fire which destroyed their home. In March, 1936, W. C. Rollins was taken to the home of his brother, G. L. Rollins, on Fisher Ridge, where he has remained except for a period of some nineteen months from March, 1937, to October, 1938, when he resided with relatives of his wife, in Poca District, Kanawha County.

As indicative of his mental deficiency, during the time he was at Camp Creek and about the time of the execution of the deed under attack herein, certain lay witnesses testified that in their opinion, he was not competent. It is also shown that W. C. Rollins was unstable and flighty in conversation, repeating matters or changing abruptly the subject of conversation, and continually asking the names of old acquaintances with whom he was conversing; that he attempted suicide various times, that he threatened to "make a sieve" out of the roof of his wife's home with his pistol; that he "cried like a baby" on numerous occasions, when his wife whipped him with a rope, when G. L. Rollins left him at the Bumgardner home, when he was taken to the home of G. L. Rollins and when Delbert Pauley moved out of the Poca District residence; that he would offer to sell his property and then refuse to sell it at the price he had fixed; and that his wife and the neighbors at Camp Creek on numerous occasions said he was crazy. A neurologist, Dr. A. A. Wilson, examined W. C. Rollins in January, 1939, and found that he was not competent at that time. In answer to a hypothetical question setting forth the peculiarities hereinbefore mentioned and taking into account his examination and interview, Dr. Wilson also stated that, in his opinion, the incompetency he found in January, 1939, was present at the time of the incidents referred to in the question.

On the question of mental capacity, the testimony of numerous witnesses for defendant was generally to the effect that W. C. Rollins was competent to transact business, nothing indicating mental incompetency being observed by such witnesses although Lela Pauley, with whom W. C. Rollins resided in 1937 and 1938, testified that she had suggested to him and to "his people" that he ought to have someone to look after his business. Dr. G. C. Robertson, a general practitioner, who examined W. C. Rollins in 1941, testified that his physical condition was very bad, his eyesight was impaired and that he had hyper-tension and dilated heart. Dr. Robertson further testified that Rollins could transact business on the date of his exam- ination, and that he could not say that Rollins was insane.

On March 10, 1936, W. C. Rollins and his brother, L. P. Rollins, owners of a tract of land in what is known as the Sissonville Gas Field, executed a lease thereof to the Columbian Carbon Company. During the summer of that year, while W. C. Rollins was living with his brother on Fisher Ridge, Delbert Pauley, a nephew of his then deceased wife, brought him to Charleston where they met V. T. Harrison, an unlicensed dealer in real estate, and discussed a sale of Rollins' undivided interest in the leased tract. It was proposed that Harrison sell the same for $800.00 and receive five per cent of the sale price as his commission. In the latter part of July, 1936, Harrison began negotiations with Sam Corey in Charleston, pursuant to which Harrison, Corey and Joe Moore inspected the land on August 15, 1936. While on this inspection trip, Corey expressed some doubt as to Rollins' competency to make a deed, according to the testimony of Ida Rollins, W. C. Rollins' sister-in-law, who resides on the land involved herein. This is denied by Corey, but he testified that prior to the sale, "almost I was afraid to buy it." About ten days later Corey entered into an agreement with Harrison that he would purchase the interest of W. C. Rollins for $1,000.00. However, when Harrison, Pauley and Moore went to Fisher Ridge and told Rollins about the agreement, he informed them he was "out of the notion" of selling his interest. This was followed by several unsuccessful attempts to bring Rollins to Charleston for the purpose of making the sale to Corey. On one occasion, when Rollins reiterated that he was not inclined to sell and added that he desired to go to Charleston to see his doctor, Harrison suggested that he go with Pauley, Moore and himself, to which suggestion Rollins assented. On this trip to Charleston, Rollins said that he would not sell his interest under any consideration, and returned to Fisher Ridge the next day, after seeing his physician. In November, 1936, Moore returned to Fisher Ridge, and told Rollins and Pauley that Rollins' lawyer, W. H. Pettry, wanted to see him, whereupon, they came to Charleston. While waiting in Pettry's outer office, Rollins told Pauley that Moore "needn't follow him around * * * he was not going to sell the place." Pettry talked with Rollins privately, after which Rollins told Pauley that Pettry said that Harrison was going to sue him for his commission of $200.00, if he did not sell, adding that "it looks like I'm going to have to sell it." Rollins and Pauley then went to lunch, during the course of which Rollins told Pauley that he didn't know what to do about the threatened Harrison suit, and that he was afraid that Harrison would take everything he had. After lunch, Rollins and Pauley returned to Pettry's office where they met Harrison, Corey and an attorney apparently representing Corey, who argued with Pettry that Harrison could enforce collection of commission on the sale of the land. The deed was thereupon prepared and Rollins' signature was evidenced by his mark, made by Pettry while Rollins touched the pen held by Pettry. Harrison testified that Pettry asked Rollins at that time, "Is this what you want to do?", to which Rollins answered affirmatively. The notary, who took Rollins' acknowledgment to the deed, testified that he did not observe anything wrong with him although it was his impression that his eyesight was somewhat impaired. For this transaction, Rollins received $150.00 cash and $650.00 in notes in the amount of $25.00 each, payable monthly from date of the sale, and Harrison received. $50.00 cash and $150.00 in similar notes. After the parties had left Pettry's office, Harrison gave Pauley $25.00, saying, "We had to come and get you before we could get him in here."

The trial court, found: (a) That the record does not show that Rollins was so mentally incompetent that his mental incapacity alone would furnish a basis for the setting aside of the deed in question; (b) that Harrison's threat of suit to collect a commission was not made in good faith and that in view of Rollins' condition at the time, Harrison's conduct constituted such...