Fishbubne Et Ux v. Heirs

• Citation: 4 S.E. 575,84 Va. 87
• Parties: Fishbubne et ux v. FuRausoN's Heirs.
• Decision Date: 01 December 1887
• Court: Virginia Supreme Court

4 S.E. 575

84 Va. 87

Fishbubne et ux

v.FuRausoN's Heirs.

Supreme Court of Appeals of Virginia.

December 1, 1887.

1. Fraub—TJndce Influence.

On the trial of a suit to cancel a deed of conveyance of real and personal property, worth over $(5, 0(K), made to defendants by complainants' intestate some months before his death, the evidence showed acts evincing insanity on the part of the grantor, who was nearly 70 years old, and that he suffered from mental and physical infirmities, and was subject to hallucinations; that the consideration, that the grantees would take care of and provide for him so long as grantor should live or remain with them, was grossly inadequate, and defendants' relation to decedent such as tobring him under their dominion. Held, that fraud would be presumed from the circumstances, and where the evidence is conflicting the decree of the trial court, setting aside the deed for want of legal capacity in the grantor to contract, is entitled to peculiar weight, unless error be palpable.'

2. Same.

In such a case, the inference of fraud and undue influence is not repelled by the allegation that the deed was the consummation of a previously declared purpose on the part of the grantor, where the evidence establishes inconsistent declarations.

3. Same—Undue Influence—Inability to Contract—Insanity—Lucid Interval.

When, on the trial of an action to cancel a deed, a state of general derangement of grantor's mind has been established, the party alleging a lucid interval at a particular period to show sanity, assumes the burden of proof, which ought to go to the natural state of his mind and habits, and not merely to accidental interviews, and the degree of self-possession in any particular act.

4. Evidence—Opinion—Contracts—Mental Ability.

On the trial of a suit to set aside a deed of conveyance, on the ground that grantor was incompetent to understand or transact business of any kind, evidence of nonprofessional witnesses who approached plaintiffs' intestate on matters of business, that they found him to be non compos mentis, giving the grounds upon which they based their opinions, held admissible.2

5. Equity—Practice—Awarding Issue out of Chancery.

The awarding of an issue out of chancery, where the evidence is conflicting and produces doubts in the mind of the chancellor, rests in his sound discretion, and, al-though subject to review on appeal, cannot be predicated upon as error, as the ver diet is merely advisory.

Richardson and Pauntleroy, JJ., dissenting.

Appeal from circuit court. Franklin county; II. M. Ford, Judge.

Suit in equity to set aside a deed. Isham M. Furguson conveyed certain real estate to defendants below, Tipton T. Fisbburne and Callie L., his wife. After the death of the grantor, his heirs, John J. Furguson and Luke Furguson, and Henry S. Trout, administrator, instituted suit to set aside the deed. An issue out of chancery was awarded, and upon the verdict of the jury final decree rendered for plaintiffs below, setting aside the deed. Defendants appealed.

G. W. & L. C. Hanshrough and J. W. Daniel, for appellants. S. Griffin, for appellees.

Lewis, P. This was a suit in equity in the circuit court of Franklin county to cancel a conveyance made in September, 1880, by Isham M. Furguson, since deceased, of certain real estate situate in Big Lick, now the city of Roanoake. After many depositions had been taken in the cause the court directed the following issues to be tried by a jury, namely: (1) Whether the deed in question was obtained by the defendants, Fisbburne and wife, the grantees therein, by fraud or undue influence; and (2) whether or not, at the time the deed was executed, the grantor was incapable, by reason of disease, old age, or other cause, of clearly understanding its purport and object, —upon the trial of which issues the complainants were given the right to open and conclude. After hearing the evidence the jury returned a verdict for the complainants on both issues. But at the suggestion of the court, assented to by the counsel, that the evidence showed the defendants to be of good character, and that the object of the complainants would be as well accomplished by a finding in their favor on the second of the issues alone, the jury amended their verdict, so as to find for the defendants on the first, and for the complainants on the second. The defendants afterwards moved the court to set aside the verdict, and to decree in their favor, notwithstanding the verdict; Dut the court overruled the motion, and entered a decree canceling the deed, and ordering possession of the property in controversy to be surrendered to the complainants. From this decree the defendants appealed.

It does not appear from the record that objection was made by either party in the court below to the awarding of an issue, but the appellants now contend that the action of the court in this particular was erroneous. We are of opinion, however, that this position is not well taken. This court has repeatedly decided that the awarding of an issue, out of chancery, rests in the sound discretion, subject to review on appeal; when the evidence is contradictory, producing doubt in the mind of the chancellor, he may always direct an issue, for the purpose of informing his conscience; and he may approve the verdict, and act upon it, when rendered, or, if dissatisfied with it, he may set it aside, and direct another trial of the issue; or he may decide the cause contrary to the verdict, without the aid of another jury, if in his judgment the law and the evidence required it, for the verdict is merely advisory. In cases of doubt and difficulty, an issue is directed, because a public examination of the witnesses, where they can be seen and heard, and subjected to the test of cross-examination, ordinarily affords better means of arriving at a correct conclusion than a perusal of the evidence on paper, especially where the credibility of witnesses is involved. And in view of the voluminous and contradictory evidence in the present case, the circuit court rightly exercised its discretion in directing an issue. Stannard v. Graves, 2 Call, 369; Samuel v. Marshall, 3 Leigh, 567; Wise v. Lamb, 9 Grat. 294; Powell v. Manson, 22 Grat. 177; Mettert's Adm'r v. Hagaii, 18 Grat. 231; Almond v. Wilson, 75 Va. 613; Crebs v. Jones, 79 Va. 381; Watt v. Starke, 101 U. S. 247.

The next and principal question in the case is whether there was error in refusing to set aside the verdict, and in decreeing for the plaintiffs. And the solution of this question depends upon the proper conclusions to be drawn from the evidence. As is usual in like cases, the evidence is conflicting, and, in addition to this, the credibility of one or more of the most important of the defendant's witnesses is assailed, so that the verdict, and the decree rendered in accordance therewith, are entitled to peculiar weight. Indeed, as was said in Almond v. Wilson, supra, to reverse the decree would be an unusual exercise of appellate jurisdiction, and in violation of the long-established practice of the court, unless error be palpable; and in Snouffer's Adm'r v. Hans-brough, 79 Va. 166, the rule is stated in terms not less strong. There is a great mass of testimony in the case, covering several hundred pages of the printed record, and to review or analyze it all would be both tedious and unnecessary. We have carefully examined it, however, and are satisfied there is no error in the decree. The case in substance is simply this: On the first of April, 1881, Isham M. Furguson, of Roanoake, departed this life, childless and intestate, leaving two brothers and a sister his heirs at law. Afterwards, one of the brothers assigned his interest in the estate to a third party, who, together with the heirs whose interest had not been assigned, were the complainants in the court below. On the fifteenth of September next preceding his death, the said Furguson conveyed to the defendants Tipton T. Fish-burne and wife, the appellants here, six acres of land and his dwelling-house and out-houses thereto attached, situate in what was then the town of Big Lick. The deed also embraced all the furniture in the house, but reserved for the grantor's use a certain designated room in the dwelling-house, and the furniture therein, during his lite. The consideration for this conveyance, as expressed in the deed, was that the grantees would take care of and provide for the grantor (medical bills excepted) so long as he should live or remain with them. It was also stipulated that the grantees would shelter the grantor's horse, and have it cared for, he to supply the necessary food, and that the room reserved by the latter should not be used or occupied by any one else, unless by mutual consent of all parties. The grantor's signature and acknowledgment of the deed were witnessed by W. K. Andrews and T. F. Barkesdale; there were no witnesses to the signatures and acknowledgment of the grantees. The value of the real estate was about $6,000; the value of the personalty does not appear.

At the time the deed was executed the grantor had reached the advanced age of nearly 70 years, and is described as being "fatally diseased, " and physically a wreck. For some time prior thereto he had been suffering from a combination of heart and liver disease, which, in course of time, affected his mind. On the first of April, 1880, his wife died, to whom he had been long married, and to whom he was much attached. Her death, superadded to his bodily infirmities, had a most depressing and injurious effect upon him. His disease, which chiefly caused his mental troubles, steadily grew worse until his death. This we are told by Dr. Webb, who, for years, was his physician, and who is one of the principal witnesses for the defendants. The same witness also testifies that he first discovered that the decedent's mind was unbalanced early in May, 1880, a few weeks after his wife's death; that about that time he...