Fissel v. Gordon

• Decision Date: 06 July 1948
• Citation: 83 Ohio App. 349,83 N.E.2d 525
• Parties: FISSEL v. GORDON et al.
• Court: Ohio Court of Appeals

83 N.E.2d 525

83 Ohio App. 349

FISSEL v. GORDON et al.

Court of Appeals of Ohio, First District, Hamilton.

July 6, 1948

John P. Strother, of Cincinnati, for appellant.

Calvin S. Cramer and Cedric Vogel, both of Cincinnati, for appellees.

PER CURIAM.

This is an appeal on questions of law and fact from a judgment finding on the issues joined in favor of the defendants, and entering judgment for the costs in their favor.

The plaintiff, Charles Fissel, conveyed an undivided one-half interest in certain real estate to defendant Stanley Gordon on March 18, 1941. This action is one to have the conveyance and subsequent successive conveyances by Gordon to Lovita Giffert and by her to Martha Lee Johnson and Grace Cox set aside, and the title of the plaintiff quieted and for an accounting of rent and for damages.

The sole ground alleged in the petition and the amended petition or amendment to the petition as it is variously called, is that at the time the plaintiff executed the deed to Stanley Gordon he was of unsound mind and lacked the mental capacity to execute a deed. There is no allegation or proof that Lovita Giffert at the time she acquired title knew of any defect in the title of Gordon, and, unless the deed from Gordon to her was totally void, she acquired a title that was free of any equity which the plaintiff might have had to rescind the conveyances and recover the title and possession of the property. The conveyance to Martha Lee Johnson and Grace Cox was made during the pendency of this action, and of course, they took title subject to whatever judgment might be entered in this action, but if Lovita Giffert's title was free of the claim of the plaintiff, their title would be equally so.

We have weighed the evidence in this case and have been unable to find any substantial evidence that in 1941 when the deed to Gordon was executed the plaintiff lacked the mental capacity to execute a deed. At that time he was transacting every other form of business, contracts of employment depositing in and withdrawing money from a building association, etc., and performing all other acts that would normally be performed by a sane person in his environment. There is a failure of proof of a lack of mental capacity.

As the sole ground alleged for invalidating Gordon's deed is mental incapacity, our finding, therefore, disposes of the entire case.

It might be added, however, that a deed executed by...