Edwards v. Davenport

• Decision Date: 01 May 1883
• Citation: 20 F. 756
• Parties: EDWARDS, Trustee, v. DAVENPORT and others.
• Court: U.S. District Court — Southern District of Iowa

20 F. 756

EDWARDS, Trustee, v. DAVENPORT and others.

United States Circuit Court, S.D. Iowa.

May, 1883

Brannon & Jayne and J. Carskaddan, for complainants.

George E. Hubbell, Bills & Block, and Martin, Murphy & Lynch, for respondents.

McCRARY J.

Upon the death of George A. Davenport, the title to his real estate included in the mortgage passed to his father and mother, George L. Davenport and Sarah G. Davenport, to each an undivided one-half; and as they both joined in the mortgage and in the covenants of general warranty therein, we are to determine, in the first place, how far either or both are estopped to set up the incapacity of George A. to make the contract sued on.

The title acquired by the respondent George L. Davenport through the death of his son, George A. Davenport, undoubtedly inures to the benefit of the mortgagee by virtue of the covenants embraced in the mortgage.

A mortgage containing covenants of general warranty will, as between the mortgagor and mortgagee, pass an after-acquired title. Rice v. Kelso, 7 N.W. 3; S.C. 10 N.W. 335; Jones Mortg. Secs. 561, 682, 825, and numerous cases cited. But at common law this rule does not apply to covenants contained in the deed of a married woman. They amount to nothing more than a release of dower, and do not estop her to claim an after-acquired interest. Bishop, Mar. Wom. Sec. 603; Childs v. McChesney, 20 Iowa, 431. And the same rule prevails under the statute of Iowa, which provides (Code Sec. 1937) as follows:

'In cases where either the husband or wife join in a conveyance of real property owned by the other, the husband or wife so joining shall not be bound by the covenants of such conveyance, unless it is expressly so stated on the face thereof.'

There is upon the face of the mortgage no express statement that the wife shall be bound by the covenants contained therein. O'Neil v. Vanderburg, 25 Iowa, 104; Thompson v. Merrill, 10 N.W. 796.

It follows that, independently of any question as to the mental capacity of George A. Davenport, the complainants are entitled to decree as against all the property embraced in the mortgage and which belonged to George L. Davenport at the time that the mortgage was given, and as to the undivided one-half of that portion which belonged to George A. Davenport.

As to the remaining undivided half of said last-mentioned property, the right of complainant depends upon the determination of the question of the mental capacity of said George A. Davenport at the time that the bonds and mortgage were executed.

It is necessary in the first place to determine what is the test by which the question of the capacity to contract is to be decided. Some of the earlier cases, and a few comparatively recent ones, hold that, in order to set aside a contract upon this ground, it must appear that there was a total deprivation of reason. Ex parte Barnsley, 3 Atk. 168; Stewart's Ex'r v. Lispenard, 26 Wend. 255. The more modern rule is that it is only necessary to show that the party executing the contract was of such weak and feeble mind as to be incapable of comprehending its nature. The rule is sometimes stated in another form, thus:

'To constitute such unsoundness of mind as should avoid a deed at law, the person executing such deed must be incapable of understanding and acting in the ordinary affairs of life.'

This statement of the rule is given in the opinion of the house of lords, in Ball v. Manning, 1 Dowl.&C. 254, and is quoted with apparent approval by the supreme court of the United States in Dexter v. Hall, 15 Wall. 9. In the former of these cases the court below refused to charge that the unsoundness of mind must amount to idiocy; and this ruling was sustained first by the court of kind's bench in Ireland, afterwards by the exchequer chamber, and finally by the house of lords.

The rule is thus stated in Dennett v. Dennett, 44 N.H. 531:

'The question, then, in all cases where incapacity to contract from defect of mind is alleged, is not whether the person's mind is impaired, nor if he is affected by any form of insanity, but whether the powers of his mind have been so far affected by his disease as to render him incapable of transacting business like that in question.'

And again:

'Every person is to be deemed of unsound mind who has lost his memory and understanding by old age, sickness, or other accident, so as to render him incapable of transacting his business and of managing his property.

'When it appears that a grantor had not strength of mind and reason to understand the nature and consequences of his act in making a deed, it may be avoided on the ground of insanity. ' Re Barker, 2 Johns.Ch. 232.

In Converse v. Converse, 21 Vt. 168, it is said that a person is of unsound mind if 'the mind is inert, the memory is unable to recall and the mind to retain in one view all the facts upon which the judgment is to be formed for so long a time as may be required for their due consideration.'

I am constrained to hold that within the rule established by these authorities, George A. Davenport was not at the time of signing the bonds and mortgage in question of sound mind, or capable of making a valid contract. That he was not totally bereft of reason may be admitted; but that he was incapable of understanding the nature and consequences of his act in executing these instruments is, I think, equally clear. The powers of his mind had been so far affected by disease as to render him incapable of transacting business like that in question.

Without attempting a review of the evidence, an abstract of which covers nearly 900 printed pages, it must suffice to say that it shows that he was attacked by a violent disease when about 7 years of age, which produced convulsions and a state of unconsciousness, lasting several weeks, and which caused a suspension of mental development from that time, and obliterated from his memory all that he had learned at school prior thereto. The family physician who attended him testifies that this sickness left him in a state 'comparatively idiotic.' A few years later he was attacked with epileptic convulsions, which continued to afflict him and to constantly impair and further weaken his intellect until the day of his death, which occurred in 1881, while an inmate of the insane hospital at Mt. Pleasant, Iowa. At the time of the execution of the instruments in question he had suffered with this malady for about 20 years. The effect of epileptic convulsions is always to impair the intellect, and when it is remembered that, after the illness suffered in childhood, George A. Davenport never possessed at his best anything more than the intellect of a child of 7 years, it is apparent that this long process of impairment must have left him in a state of such imbecility as to render him utterly incapable of understanding the nature and consequences of his act in executing the bonds and mortgage sued upon.

It is in such cases, of course, impossible to fix the exact point where the disposing mind disappears, and incapacity to contract begins; but here all the facts and circumstances, and the decided weight of the direct testimony, show that in the case of George A. Davenport this point had been reached and passed prior to the date of the instruments sued on. His conduct for years prior to the execution of said instruments-- in fact, during all the period after his illness in childhood-- was that of a mere child, or of a thoroughly imbecile man. He was never permitted to manage or care for his estate. All his business transactions of any importance were conducted by his father. He was often violent, sometimes dangerously so. Some 70 reputable witnesses who knew him well, testify to such habitual conduct and deportment on his part as would seem to demonstrate the want of capacity to contract; and nearly, if not quite, all of them declare that he was incapable of comprehending the nature and character of the contract embodied in the mortgage and notes sued upon in this case.

It follows that the defense interposed by the respondent Sarah G. Davenport, as to the undivided half of the south half of said block 59, must be sustained, except in so far as the money borrowed from the trust company was used to remove valid liens from said property. To the extent of any such liens actually paid off out of said money, the trust company is entitled to relief. The doctrine of subrogation may well be applied to such a case. If the money advanced by the trust company was used to discharge a valid pre-existing lien, to that extent the respondent has been benefited. The trust company was not a mere volunteer; and having discharged a valid lien, it is entitled by subrogation to all the remedies which the original holder of such lien possessed as against the property. Cottrell's Appeal, 23 Pa.St. 295; Mosier's Appeal, 56 Pa.St. 80.

It is alleged that the money advanced by the trust company was used to discharge (1) certain mortgages to Richardson, Mrs Hilton, and John Littig; and (2) certain delinquent taxes. As to these mortgages, I find from the evidence that they were executed to secure the payment of debts of George L. Davenport, and that George A. received no benefit from them; and as they cannot be upheld as contracts binding upon him on account of his want of mental capacity, I...