Coulter v. Coulter
| Decision Date | 29 May 1945 |
| Docket Number | 9663. |
| Parties | COULTER v. COULTER. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Where the only error assigned as a ground for the reversal of a decree is the failure of the evidence to sustain it, unless the evidence opposed to its finding clearly preponderates it will be affirmed.
Duffield & Hyer and Hines & Davis, all of Sutton, for appellant.
G C. Belknap and Van B. Hall, both of Sutton, for appellee.
This chancery proceeding was instituted in the Circuit Court of Braxton County by M. E. Coulter against Glen O. Coulter, one of her sons, for the purpose of setting aside a deed executed by the complainant to the defendant conveying seventy-five acres of land situate on Leatherwood Run in Birch District upon which stood the home in which the defendant had been reared by his mother. The prayer and allegations of the bill of complaint include as ground for relief, fraud, inadequacy of consideration, and the averment that the instrument under attack is not, in fact, the complainant's act and deed. The respondent filed an answer that denies the allegations of the bill of complaint generally and in detail, so far as they affect the complainant's alleged right to relief. Testimony of both sides was taken in open court, after which a decree was entered deciding the material issues of fact favorably to the contentions of the complainant and granting the relief sought. This Court granted an appeal from that decree in response to the prayer of a petition assigning five separate points of error, all of which go either to the sufficiency of the evidence taken to sustain the decree entered or to the weight to be attached to certain evidence. The assignments, we believe, can be covered by a general discussion of the whole evidence without separating them numerically.
In nineteen hundred and twenty-one before the death of complainant's husband, George Coulter, and while his and complainant's three sons, Glen, Hilly and Grover, were unmarried and in their young manhood, there was conveyed to complainant one hundred and seventy-six acres on Leatherwood Run, upon which she, her husband and sons, immediately moved occupying its principal dwelling, there being two residences upon the tract conveyed. In nineteen hundred and twenty-seven Glen, the defendant, married, and he and his wife, Madge, moved into the smaller house on the home place.
It would seem that the Coulters encountered difficulty in paying for the farm, so that in nineteen hundred and twenty-nine they sold sixty acres in order to pay the purchase debt, it then having been converted into a different form. After this Grover moved to a midwestern city, and Hilly married and lived in the neighborhood of the Coulter farm.
Glen, being the only son who remained on the farm, helped considerably in its maintenance, his father being quite elderly and unable to perform manual labor to a substantial degree. There is conflict on the question of the extent to which Glen was compensated, if at all. In nineteen hundred and thirty-four the father's health had failed to an extent that required his commitment to a hospital in Philippi, and Mrs. Coulter spent several days there. At about the same time Glen and his wife moved into the Coulter dwelling, they say at her invitation, and the complainant testifies that it occurred without her knowledge and while she was in Philippi assisting in caring for her husband. Mr. Coulter died in the fall of nineteen hundred and thirty-four, a day after his return from Philippi and a few days after Glen and his wife had moved to the Coulter home. There are few direct conflicts in the testimony to this point, but from here on the conflicts become decidedly more pronounced and numerous.
On February twelfth, nineteen hundred and forty-one the day on which the purported execution and acknowledgment of the deed in controversy took place, Mrs. M. E. Coulter, who could not read nor write, and who was then seventy-four years old, admittedly was suffering from a serious attack of influenza, although there are contradictions as to whether she was altogether bedridden on that day.
Glen Coulter arranged with a Dr. Norman Goad, whose office was located at Strange Creek, an unincorporated hamlet several miles farther from the Coulter farm than Sutton, to visit Mrs. Coulter at around two o'clock in the afternoon of February twelfth. This was the only occasion during her illness, which apparently lasted between four and six weeks, that Dr. Goad called on her, although he had treated her from time to time for a number of years. Dr. Goad testifies that, according to his best recollection, Mrs. Coulter was not in bed, but was alternately in a chair and on a couch during his visit; that she responded to his questions intelligently; and that although 'she was rather bad off', in his opinion she was capable of knowing and understanding the effect of the deed in question. He was not asked whether Glen had had him examine his mother for the purpose of reaching a conclusion on that question, nor whether he had told Glen his opinion before the time Glen testified that the deed was executed.
When Dr. Goad left the farm in his car, Glen went with him as far as Frametown, another unincorporated town farther from the farm than Sutton on State Route 4 between Lost Creek and the Coulter place. He there met a notary public who had agreed to go to the farm, Glen having told him, according to the notary, that 'his mother wanted me to come over and do some Notary work for her'. It does not appear who paid the notary for his trouble nor how much he received. He and Glen arrived at the Coulter farm at about four o'clock in the afternoon. Upon arriving, the notary went to Mrs. Coulter's bedroom and found her in bed, with a Mrs. McLaughlin and Glen's wife in the room. He says that Mrs. Coulter asked Mrs. McLaughlin to leave, and that he does not recollect whether Glen's wife left with her or not, but that Glen came to the room a few minutes later with the deed, which the notary public did not then know was a deed, in his possession. It was not placed in the possession of Mrs. Coulter in the notary's presence at any time. The notary states that he asked her if she had read the deed, her inability to read apparently being unknown to him, although he states that he had known her for over twenty years. Her reply was that she had had it read to her, and that it was 'the way she wanted it'. Glen, who was accustomed to signing papers for his mother, wrote the name of M. E. Coulter in the space intended for that purpose at the bottom of the deed and the notary states that then 'I held the pen at the bottom and she helt the top of it and made her mark.' The notary states that he took the acknowledgment in question. He neither read the instrument nor explained its contents to Mrs. Coulter. It is certain that he and Glen were in the room with Mrs. Coulter when her name was affixed and her mark made, and, unless Glen's wife was also present, that there were no others.
Glen Coulter testified that his mother was in good mental condition when her name and mark were placed on the deed and she acknowledged it in the presence of no one but himself and the notary public. He testified also that a short time after the death of his father in nineteen hundred and thirty-six his mother had a deed prepared the effect of which would have been to convey to him, Glen, the same boundary of seventy-five acres as that described in the deed in controversy, and that the attorney in Sutton who prepared the deed at his mother's request added, without his mother's knowledge, a covenant obliging the grantee to support and maintain the grantor for life. Glen Coulter testified that when his mother found that provision in the deed she declined to execute it. Mrs. Coulter says that when Glen found that provision in the deed he would not accept it and that his attitude changed her mind...
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