Fox v. Starbuck.
| Decision Date | 06 October 1936 |
| Docket Number | (No. 8396) |
| Citation | 117 W.Va. 736 |
| Court | West Virginia Supreme Court |
| Parties | E. B. Fox, Committee, v. JosiE Starbuck et al. |
"A written contract, whether under seal or not, may be modified or a new one substituted for it, by a parol contract subsequently made." Corns-Thomas Engineering Co. v. County Court. 92 w. Va. 368, 381, 115 S. E. 462.
A deed in consideration of the care and support, etc. of the grantors may be set aside in equity where the grantee has failed substantially to perform the material conditions of the deed.
Appeal from Circuit Court, Summers County.
Suit by E. B. Fox, committee, against Josie Starbuck and others, wherein Martha Clouse and other revived the suit as plaintiffs. From an adverse decree, such plaintiffs appeal.
Reversed and remanded.
W. C. Hay the and Raymond Gordon for appellants.
Wm. H. Sawyers and W. A. Brown, for appellees.
Hatcher, President:
This suit involves the sanity of a grantor, and the performance of his grantee under a deed conditioned for care, support, etc.
On August 4, 1931, Peter Cales and Amanda, his wife, granted unto Mrs. Josie Starbuck (the daughter of Mrs. Cales by a former husband) all the real estate and personal property of every kind and character then owned by them, in consideration that the grantee "take and care" for them during life, furnish them with anything they might need, and bury them decently at death. The deed recited that the title to the property passed immediately to the grantee, but that the grantors retained its possession with the right to manage it for life. A vendor's lien was reserved to insure faithful performance by the grantee. The grantors then owned jointly a First National Bank of Hinton time certificate deposit of $2330.00, and several tracts of real estate. The certificate was indorsed by the grantors about November 4, 1931, and negotiated by Mrs. Starbuck to the bank. On December 17, 1931, the Mental Hygiene Commission of Summers County found Peter Cales to be "a mental defective, due to his advanced age, and incapable of attending to business." E. B. Fox was appointed his committee, and in 1932, instituted this suit to have the deed to Mrs. Starbuck cancelled, and to recover from her and the bank the certificate or its value. He charged mental incompetency to Peter Cales and failure of consideration to Mrs. Starbuck. Pending the suit, Mrs. Cales died in March, 1933, and Mr. Cales died five months later. His children by a former marriage revived the suit and now prosecute it. The circuit court found against them.
A number of witnesses who are interested in the result of the suit testified as to the mental condition of Mr. Cales. They are disqualified by Code, 57-3-1, and their evidence is not considered. A number of disinterested witnesses narrated eccentric and sometimes foolish conduct by Cales around August 4, 1931 (the date of the deed) and were of opinion that he was then incompetent to attend to business. About an equal number of disinterested witnesses had not observed such conduct and considered him competent for business at that time. The notary before whom the deed was acknowledged knew him well, and saw nothing out of the ordinary about him on that occasion. A physician who examined Gales on December 3, 1931, "in a general way * * * just as a general practitioner would," found him suffering from senile dementia, and was of opinion that the condition had been developing for some years. Another physician who treated Gales several times for bodily infirmities in 1932-3, but made no mental examination, was of opinion he was "mentally all right."
With such disagreement among the witnesses, we cannot say that the circuit court was plainly wrong in finding that Gales was mentally competent to make the deed of August 4, 1931.
Whether Mrs. Starbuck acquired the certificate of deposit from the Cales as a gift (executed) or otherwise does not appear. But the parties had the unqualified right to modify or change the conditions in the deed affecting the certificate. Corns-Thomas Engineering Co. V. County Court, 92 W. Va. 368, 381, 115 S. E. 462; Azure v. Hunter, 101 W. Va. 191, 132 S. E. 726. By indorsing and delivering it to Mrs. Starbuck, the Cales clearly implied their intention to...
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State ex rel. Coral Pools, Inc. v. Knapp, 12216
...may be modified or supplemented by a subsequent valid oral contract. Wyckoff v. Painter, 145 W.Va. 310, 315, 115 S.E.2d 80; Fox v. Starbuck, 117 W.Va. 736, pt. 1 syl., 188 S.E. 116; Corns-Thomas Engineering & Construction Co. v. County Court of McDowell County, 92 W.Va. 368, 381, 115 S.E. 4......
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