Ewing v. Wilson

• Decision Date: 27 April 1892
• Docket Number: 15,949
• Parties: Ewing et al. v. Wilson et al
• Court: Indiana Supreme Court

31 N.E. 64

132 Ind. 223

Ewing et al. v. Wilson et al

No. 15,949

Supreme Court of Indiana

April 27, 1892

Petition for a Rehearing Overruled Sept. 17, 1892.

From the Cass Circuit Court.

Judgment affirmed.

J. C Nelson, Q. A. Myers and R. E. Pendarvis, for appellants.

D. D Dykeman, W. T. Wilson and M. Winfield, for appellees.

OPINION

Elliott, C. J.

The appellants claim title to real estate, and base their claim upon a deed executed to George W. Ewing, senior, by George W. Ewing, junior. The deed is the same as that which received consideration in the cases of Ewing v. Jones, 130 Ind. 247, 29 N.E. 1057; Ewing v. Lutz, 131 Ind. 361, 30 N.E. 1069, and other cases. The decisions in those cases conclusively settle the questions arising upon the instrument itself, but they go no further; on the contrary, as the opinions in those cases expressly declare, the court confined its decision to the language of the deed, considered without reference to extrinsic facts. In this case questions very different from those presented in the cases referred to require consideration and decision. In the case before us the appellees filed a cross-complaint, asserting title and praying that it be quieted in them, and the court made a special finding. The questions we are required to consider and decide arise on the special finding, for the ascertainment and declaration of the principles applicable to the facts stated in the finding, necessarily involve and dispose of all the incidental questions presented by the ruling denying a new trial.

The special finding sets forth various conveyances, and, among others, the deed of George W. Ewing, junior, to George W. Ewing, senior, and also the deeds executed by the latter reconveying the land to the former. Those deeds are sufficiently set forth or referred to in Ewing v. Jones, supra, and we do not deem it necessary to again copy them or to give a more particular statement of their contents. We copy from the finding the trial court's statement of the facts connected with the execution of the conveyance first mentioned: "That said George W. Ewing, second, was born July 20th, 1841, and was at the time of the execution of the deed between twenty-two and twenty-three years of age and had just attained his majority, that he had been in the army and had no business experience or knowledge; that he was intemperate in his habits, unmarried, and easily influenced by those in whom he had confidence, and was particularly under the influence and control of George W. Ewing, senior, his father, the grantee in said deed; that said deed described and included all of the estate, real and personal, of which George W. Ewing, second, was at the time possessed of; that the property so conveyed was of the value of fifty thousand dollars; that George W. Ewing, senior, grantee and trustee named in said deed, was the father of George W. Ewing, second, was a man of great wealth--more than two millions of dollars--of large experience in business matters, great ability and force of character, and generally carrying things his own way with persons connected with him; that he had a commanding influence over his son, said George W. Ewing, second; that the deed of trust of December, 1863, was executed by George W. Ewing, second, in compliance with the suggestion and at the dictation of George W. Ewing, senior; that the consideration of six hundred dollars named in the deed was nominal and was never in fact paid as recited in said deed, but only advanced out of the future income of the trust property, and in an accounting had later it was accounted for out of said income; that at the time the deed was executed and for the purpose of keeping him out of the army the grantee in said deed had directed the grantor to go to California, and the grantor had agreed to go; that both grantor and grantee, in executing said deed, understood that it should be temporary only, and that on the son's return from his visit, or as soon as he desired, its powers should be revoked, but, meantime, his father in acting under said deed should manage the property and create an income therefrom; that said deed was prepared at the instance of the grantee, George W. Ewing, senior, by William Lytle and Bynum D. Minor, his confidential bookkeepers, both of whom were devoted to his interests and controlled by his wishes; no professional counsel was present or consulted."

The controlling question in this case is as to the effect of the trust deed executed by Ewing, the son, to Ewing, the father, as read by the light of the circumstances attending its execution, and as interpreted by the subsequent acts of the grantor and the grantee. The light from these sources falls fully upon the case before us, but it was entirely absent from the case as made by the record in Ewing v. Jones, supra. The great rule, we may say at the outset, for the construction of instruments is to discover and execute the intention of the contracting parties. In this instance it is our duty to ascertain, if we can, the intention of the parties, and, if our quest results successfully, give the intention full effect. The general question may be thus stated. Did Ewing, the son, intend to part with all dominion over his property and vest it irrevocably in Ewing, the father, and did the deed of trust as read by the light of attendant facts and the settled principles of equity jurisprudence, have the effect to completely divest the grantor of all his property? If this was the intention of the parties and the effect of the deed, it must stand as written; if it was not, the reconveyance of the senior Ewing was effective, and the appeal must fail.

It is too well settled to admit of controversy that parol evidence is competent for the purpose of proving fraud or mistake. Equity will relieve upon parol evidence, and in cases similar in their general features to the present courts have often reformed instruments such as the one before us. Willan v. Willan, 16 Vesey, 72; Wiser v. Blachly, 1 Johns. Ch. 607; Quick v. Stuyvesant, 2 Paige, 84; Coles v. Bowne, 10 Paige, 526; Firmstone v. DeCamp, 17 N.J. Eq. 309; Ketselbrack v. Livingston, 4 Johns. Ch. 144. It is an elementary rule that parol evidence is competent to prove the consideration of a deed, and a rule of like elementary character is, that parol evidence is admissible even where there is no fraud or mistake to show facts surrounding the execution of an instrument. It is, therefore, no objection to the special finding before us that it contains facts resting on parol as well as matters embodied in written instruments. It would not be an effective objection in ordinary cases, and it is even less effective in such a case as this, in view of the facts attending the execution of the deed, the confidential relation of the parties, and the nature of the transaction.

Conspicuous among the facts is the absence of consideration. It is now known to us that the trust deed was without consideration. If, therefore, Ewing, the son, irrevocably parted with his property, he did it because it was his intention to make an absolute and unalterable gift. If this was his intention, Ewing, the father, took as the trustee of donees, who had yielded no consideration. Neither is the trustee a bona fide purchaser, nor are the beneficiaries purchasers for value, and hence they have no rights as purchasers of that class. The trustee is, indeed, constructively if not actually, a mala fide donee, for the means by which he secured the execution of the deed, the advantage he took of the confidential relations existing between him and his son, the use he made of his influence, and the agents he employed to secure an instrument fitting his purpose strip him of the vestments of a donee in good faith. There was undue use of confidential relation, and there was resort to extraordinary means. The end attained was unconscionable, for a transaction which takes from a man all his property without consideration is not commendable or just, unless there was full knowledge and entire and unfettered freedom of thought and action.

The authorities fully warrant the conclusion that a court of equity will not enforce an instrument executed under such circumstances as was the one before us, in favor of the active procurer of its execution. Ashton v. Thompson, 32 Minn. 25, 18 N.W. 918; Miskey's Appeal, 107 Pa. 611; Bainbrigge v. Browne 18 L. R. Ch. D. 188; Berdoe v. Dawson, 34 Beav. 603; Miller v. Simonds, 72 Mo. 669; Wood v. Rabe, 96 N.Y. 414. In Miller v. Simonds, supra, the child was of full age, but it was held in a well reasoned opinion that the gift was ineffective, because of the undue influence which the kinship between father and child gave the former. Gifts procured by a parent from a child are regarded with stern eyes by the courts of equity, and are not upheld if there are circumstances indicating their unconscionable character, or showing the use of an undue or improper influence. Garvin v. Williams, 44 Mo. 465; Street v. Goss, 62 Mo. 226. In the case last cited it was said, in speaking of a gift by a kinswoman to a kinsman: "There exists, therefore, no necessity to show fraud or imposition practiced on him who bestows the confidence; but simply to show that, during the pendency of such intimate relations, the conveyance in question was made. This being done, all the above mentioned consequences as to the onus of proof attend the given transaction as inevitable incidents."

The existence of a confidential relation, as has long been settled, subjects all gifts to suspicion, and they can be rescued from condemnation only by evidence establishing good faith, full knowledge of consequences and of the facts. Here we have not only the relationship, but we have also the influence flowing...