Curlett v. Newman.
| Decision Date | 23 September 1887 |
| Citation | 30 W.Va. 182 |
| Parties | Curlett v. Newman. |
| Court | West Virginia Supreme Court |
Fraud Conveyance Undue Influence Action to Set Aside. An aunt, by deed conveyed to her nephew, who was at the time, and had been for many years, living in her family, and managing her farm and other business affairs, her whole estate, real and personal, subject to her life-estate therein. Upon a bill filed by the grantor to set aside said deed after the death of the grantee, and nearly five years after its date, upon the ground, that, by the misrepresentation and fraud of the grantee, the grantor was induced to execute a different instrument from that she believed she was executing, the plaintiff failed to prove, that there was any such misrepresentation or fraud, or that the contents of the deed were not such as she intended Held:
I. Such deed will not be set aside for the alleged fraud. (p. 188.)
II. Nor were the grantor and grantee placed in such a fiduciary or confidcntial relation to each other as would entitle the grantor to have the deed annulled at her mere volition or pleasure. (p. 185.)
III. And especially would a court of equity refuse to grant relief in such case, after such unexplained delay in bringing her suit.
A. P. White and D. B. Lucas, for appellants. S, L. Flournoy for appellee. Snyder, Judge:
Suit in equity commenced in January, 1884, in the Circuit Court of Hampshire county, by Elizabeth Curlett against William C. Newman, Mary A. Babb, Elizabeth Nesmith and Elwood Parsons to set aside a deed made by the plaintiff to John C. Newman. The deed is dated July 22, 1879, was acknowledged on the same day, and duly admitted to record in the county four days after its date. The consideration mentioned is love and affection and one dollar; and the deed conveys to John C. Newman all the grantor's interest in the farm on which she resides, all her other land, and all her personal estate, reserving to the grantor the use and possession of all said property for and during her natural life. John C. Newman died intestate and unmarried in November, 1883, leaving as his heirs at law his brother and two sisters, the defendants, William 0. Newman, Mary A. Babb and Elizabeth Nesmith. The material ground alleged in the bill for setting aside the deed is, that the plaintiff was induced to execute the same by the misrepresentations and imposition of said John C. Newman; that having agreed to execute an instrument by which said Newman and Elwood Parsons should have all her property at her death in equal portions, if they survived her, the said Newman caused this deed to be prepared, and presented it to her for execution, with the assurance, that it expressed her wishes as agreed upon, and that she, confiding in said assurance, signed and acknowledged the deed, without reading it or knowing its true contents. The defendant, W. C. Newman, filed a demurrer to the bill at rules; but no notice of the demurrer was taken in any of the orders of the court, Elizabeth Nesmith answered, denying, that there was any imposition, fraud or mistake in the execution of the deed; and the bill was taken for confessed as to the other de endants. Depositions were taken by the plaintiff and defendants, and on September 20, 1885, the court entered a final decree, setting aside and annulling said deed. From this decree an appeal was allowed on the petition of the defendants, W. C. Newman and Elizabeth Nesmith.
It is unnecessary to consider or decide whether or not W. C. Newman could appeal from said decree, since the right of Elizabeth Nesmith to maintain this appeal is unquestionable; and as her interests and those of said Newman are identical, the reversal of the decree as to her must operate as a reversal as to both. Anderson v. Gallego, 6 Gratt. 363; Bock v. Bock, 24 W. Va. 586; Callaghan v. Circle, 12 W. Va. 562.
The matter complained of by the plaintiff is, that the name of Elwood Parsons was not mentioned in the deed as one of the grantees, and that, by the fraud of John 0. Newman, he alone was made grantee. The plaintiff, of course. was incompetent to testify as to the execution of the deed in this cause, and a fortiori it was incompetent to offer the testimony of other witnesses as to her declarations respecting that transaction. Excluding the proof of such incompetent declarations, there is really no evidence of any misrepresentation, imposition or fraud in the procurement of the deed. On the contrary, the only witness who testifies on the subject of the execution of the deed is the justice who took the acknowledgment, and he says, that when he called, at the instance of John 0. Newman, at the house of the plaintiff to take her acknowledgment...
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