Gilham v. French

• Decision Date: 01 April 1882
• Citation: 6 Colo. 196
• Parties: GILHAM ET AL. v. FRENCH.
• Court: Colorado Supreme Court

6 Colo. 196

GILHAM ET AL. v. FRENCH.

Supreme Court of Colorado

April, 1882

Appeal from District Court of Custer County.

THE case is stated in the opinion.

Messrs JOHN W. WARREN & SON and C. E. MOORMAN, for appellants.

Messrs MONTGOMERY and RISING and G. S. ADAMS, for appellee.

STONE J.

This suit was brought by the plaintiffs as heirs of Charles A Gilham, deceased, to set aside a deed executed by the deceased a few hours before his death, whereby he conveyed the principal portion, if not all, of his property, real and personal, to the defendant, his business partner.

The grounds of the equitable relief prayed are the alleged mental incapacity of the grantor, at the time of the execution of the deed, to make a valid conveyance; undue influence of the defendant over the deceased, and consequent fraud in the procurement of the deed, and inadequacy of consideration to support the conveyance.

A trial of the issues made upon the foregoing grounds was had to a jury; after submission of the evidence in the case, plaintiffs moved to submit to the jury seventeen distinct questions for special findings thereon, which motion was, we think properly, refused by the court. Eleven instructions were then prayed by the plaintiff, all of which were refused by the court. No instructions were prayed on behalf of defendant, and none whatever were given to the jury by the court. The court then submitted to the jury for special verdict the following questions:

1st. Did the defendant William French procure the deed from Charles A. Gilham to himself, dated March 10, 1880, by fraud?

2d. Did the said French procure said deed by the exercise of undue and improper influence upon the said Gilham?

3d. Did Charles A. Gilham have mental capacity sufficient to comprehend and understand the effect of his act when he made said deed?

4th. If your answer to the third is 'no,' was there a valuable consideration passed from the defendant to Gilham for the property conveyed in the deed offered in evidence?

To the first, second and third of these questions the jury answered 'no,' and to the fourth they answered 'yes.' Thereupon plaintiffs moved for a decree as prayed in their complaint, but the court denied the motion, and thereafter, upon motion of defendant, set aside the special finding of the jury upon the third interrogatory, and decreed a dismissal of plaintiffs' bill of complaint, from which judgment and decree the plaintiffs appeal.

It is not deemed necessary or important to pass upon all the assignments of error, but we will notice those matters only which chiefly affect the case in view of another trial.

The deed in question, although in form an ordinary conveyance for the nominal consideration of $1,000 in money, was in fact, as disclosed by the testimony, a deed of gift...