Charley v. Norvell

• Decision Date: 29 January 1924
• Docket Number: Case Number: 14654
• Citation: 221 P. 255,97 Okla. 114,1924 OK 91
• Parties: CHARLEY v. NORVELL et al.
• Court: Oklahoma Supreme Court

1924 OK 91

221 P. 255

97 Okla. 114

CHARLEY v. NORVELL et al.

Case Number: 14654

Supreme Court of Oklahoma

Decided: January 29, 1924

Syllabus

¶0 1.Appeal and Error--Questions of Fact--Verdict--Mortgage Foreclosure--Validity of Release.

Where in an action to recover a sum of money alleged to be due on a promissory note and to foreclose a mortgage on certain real estate given to secure the payment of said note, the execution of an unconditional release of said mortgage is pleaded by the defendant and in effect admitted by the plaintiff in his reply, and the question of whether or not said release was supported by any consideration, and whether or not plaintiff at the time he executed said release was an incompetent person and incapable of transacting business for himself, is submitted to the jury under proper instructions, and there is evidence reasonably tending to support the verdict of the jury on both issues, the Supreme Court on appeal will not disturb such verdict.

2.Contracts -- Validity -- Test of Incompetency of Party.

Where it is sought to show that a certain contract is void because one of the parties thereto was incompetent to enter into contractual relations of any kind, the test of the capacity to make a contract is whether the party had the ability to comprehend in a reasonable manner the nature and effect of the act in which he engaged and the business he transacted.

3.Mortgages--Validity of Release--Incompetency of Releasor--Proof.

To invalidate a release of a mortgage, it must appear that the party executing the release was incapable of comprehending that the effect of the release when made, executed and delivered would be to divest him of any title or lien upon the land covered by said mortgage, and to release the mortgagor from all obligations thereunder.

4.Same--Sufficiency of Instructions.

Record examined; and held, that the instructions given by the court to the jury fairly stated the law applicable to the case.

5.Judgment Sustained.

Record examined, and held, that no misconduct on the part of defendants or abuse of discretion on the part of the trial court sufficient to justify a reversal is shown.

Commissioners' Opinion, Division No. 5.

Error from District Court, Tulsa County;

Action by Lemuel Charley, an incompetent person, by his guardian.Vernon F. Seaman, against Norma L. Norvell et al. to foreclose a real estate mortgage.Judgment for defendants, and plaintiff appeals.Affirmed.

Robinson & Mieher, for plaintiff in error.Z. I. J. Holt, Judge.

Norvell, Goodloe & Gambill and Edward E. Harvey, for defendants in error.

FOSTER, C.

¶1 This action was commenced in the district court of Tulsa county, Okla., by Lemuel Charley, an incompetent person, by his guardian, Vernon F. Seaman, plaintiff in error, plaintiff below, against Norma L. Norvell and Woodson Norvell, defendants in error, defendants below, to recover the sum of $ 1,200, alleged to be due him on a promissory note, and to foreclose a mortgage covering certain real estate owned by the defendants in error in the city of Tulsa, Okla., given to secure the payment of said note.The parties will be hereinafter referred to as they appeared in the court below.

¶2 It appears that Lemuel Charley was an enrolled full-blood Indian, who reached his majority on the first day of April, 1919; that on the 9th day of April, 1910the defendants had executed to the Union Trust Company their promissory note of that date for the sum of $ 1,200, due and payable on the 9th day of July, 1910, thereafter, and that to secure the payment of said note had executed their mortgage upon certain real estate situated in Grandview addition to the city of Tulsa, Okla., which note and mortgage had thereafter and before maturity been endorsed and transferred to the plaintiff, who was then a minor under guardianship, and who continued under guardianship until April 1, 1919, on which date the plaintiff attained the age of 21 years; that said note and mortgage had not been fully paid by the defendants prior to the date on which the plaintiff reached his majority, and on the 10th or 11th day of April, 1919, thereafter, the plaintiff executed and delivered to the defendants a release of said mortgage purporting to release the defendants from liability on said note and to discharge the real estate mentioned from the lien of said mortgage.

¶3 On the 2nd day of May, 1919, thereafter, the county court of Tulsa county adjudged Lemuel Charley to be an incompetent person and appointed Vernon F. Seaman guardian of both his person and estate.

¶4Defendants filed their answer in which they alleged the contractual capacity of the plaintiff on the 11th day of April, 1919, and that on said date the defendants fully paid and satisfied said note and mortgage, in consideration of which the plaintiff made, executed, acknowledged, and delivered to the defendants an unconditional release of the mortgage and of the lien created thereby, and all obligation thereunder, which was duly filed for record in the office of the county clerk of Tulsa county, Okla., on the 14th day of April, 1910, and recorded in book 258, at page 300 of the mortgage records of said county.

¶5Plaintiff filed an unverified reply in which he denied the execution of the mortgage release, and further alleged that if said release was executed by the plaintiff, it was void:

(1) Because it was given without any consideration; and,

(2) Because at the time of its execution the plaintiff was an incompetent person and therefore entirely incapable of transacting any business whatever.

¶6 Upon the issues thus framed, the cause proceeded to trial before the court and a jury and the jury rendered a verdict in favor of the defendants.From a judgment of the court based on this verdict, the plaintiff brings the cause regularly on appeal to this court.

¶7 Several specifications of error are relied upon for a reversal, but the plaintiff presents all of them under the following propositions, which we shall notice for convenience in inverse order:

(1) That the judgment of the trial court is contrary to the evidence.

(2) Contrary to the law.

(3) That the court erred in its instructions to the jury.

(4) That there was misconduct on the part of the defendants.

¶8 The reply of the plaintiff was unverified, and therefore there remained for determination by the jury the following issues of fact:

(1) Was the execution of the release supported by any consideration?

(2) Was plaintiff at the time he executed the release an incompetent person and therefore incapable of transacting business for himself?

¶9 It is sufficient to say that these issues were properly submitted to the jury which found in favor of the defendants on both of them.An examination of the record convinces us that there was evidence reasonably tending to support the verdict of the jury on both propositions, and in these circumstances, where no prejudicial errors are shown in the instructions of the court and its ruling upon law questions presented during the trial, this court will not substitute its judgment for that of the jury, and the verdict will not be disturbed on appeal.

¶10 There is testimony tending to show that the plaintiff had a fair education and that he was somewhat above the average for intelligence of members of his race of like age and that he was paid for the execution of the release the sum of $ 1,400 (which included another mortgage of $ 500), part in cash and part by professional services rendered and to be rendered by Woodson Norvell, one of the defendants, in connection with a proceeding then pending to have him declared an incompetent by the county court of Tulsa county.In the absence of fraud, inadequacy of consideration, or overreaching, neither of which was in issue under the pleadings, we think the evidence fairly supported the verdict of the jury on each proposition.

¶11 The contention that the release is invalid as a matter of law because executed at a time when proceedings were pending to adjudge the plaintiff an incompetent person is untenable.That such a release might be set aside in a proper proceeding upon a showing of fraud or other inequitable conduct does not furnish the correct rule for our guidance where the claim is that the release is void as a matter of law because executed at a time when proceedings to have the plaintiff adjudged an incompetent were pending and in advance of the judgment of the court entered subsequently in such proceeding.Nor can we agree with plaintiff that the proceeding to declare the plaintiff an incompetent was lis pendens and the judgment subsequently entered in such proceeding binding on the defendants.

¶12 The legal presumption of competency which supports the contracts of every person of full age would have a very restricted operation if the contention of plaintiff on this proposition were sustained.The legal presumption of competency must be indulged until this presumption is met and overturned by proof of contractual incapacity, and where, as here, the legal effect only of the contract is questioned, in the absence of fraud, the fact that such contract may have been made during the pendency of a proceeding to have one of the...