Harper v. Rogers
| Decision Date | 05 December 1989 |
| Docket Number | No. 18737,18737 |
| Citation | 182 W.Va. 311,387 S.E.2d 547 |
| Court | West Virginia Supreme Court |
| Parties | Emma HARPER v. Benjamin Ray ROGERS and Gale Rogers, His Wife. |
Syllabus by the Court
1. Syllabus Point 3, Ellison v. Lockard, 127 W.Va. 611, 34 S.E.2d 326 (1945).
2. "The testimony of a subscribing witness to the execution of a writing is entitled to peculiar weight in considering the capacity of the party executing it." Syllabus Point 4, Ellison v. Lockard, 127 W.Va. 611, 34 S.E.2d 326 (1945).
3. Syllabus Point 1, Hale v. Hale, 62 W.Va. 609, 59 S.E. 1056 (1907).
4. "To set aside a deed for undue influence, it must appear that the influence was such as wholly to destroy the free agency of the grantor, and to substitute the will of another for his; and, unless such taking away of free agency appears, the showing of a motive and an opportunity to exert such undue influence, together with failing mental powers of the grantor, are not sufficient to overthrow the deed." Syllabus Point 5, Woodville v. Woodville, 63 W.Va. 286, 60 S.E. 140 (1908), overruled on other grounds, Winfree v. Dearth, 118 W.Va. 71, 188 S.E. 880 (1936).
5. " Syllabus Point 3, Cyrus v. Tharp, 147 W.Va. 110, 126 S.E.2d 31 (1962).
David J. Romano, James N. Riley, Clarksburg, for Emma Harper.
Lewis A. Clark, Jones, Williams, West & Jones, Clarksburg, for Benjamin Ray Rogers and Gale Rogers.
This case is before this Court upon the appeal from a September 18, 1987, order of the Circuit Court of Doddridge County, denying appellant's motion to set aside a prior order. The prior order, dated August 14, 1987, found that Everett Wine 1, plaintiff below, made a valid conveyance of his Doddridge County property to his son, Benjamin Ray Rogers and his wife, Gale Rogers, subject to the dower rights of Fern Rogers, the mother of Benjamin Rogers, and also subject to a life estate of the appellant. In concluding the conveyance was valid, the court determined that Everett Wine was competent to sign such deed and that there was no undue influence involved in the transaction. We affirm the order of the circuit court.
Everett Wine was an elderly gentleman who was afflicted with various ailments in his latter years. He suffered from a chronic obstructive lung disease, bouts of pneumonia, Laenner's cirrhosis, and possibly chronic brain syndrome. He had been under the care of Dr. Frederick Spencer since 1982, and last seen by him prior to the events that occurred on September 10 and 11, 1986, on April 2, 1986.
Mr. Wine had six known and living children, one of whom is the appellee, Benjamin Rogers. He testified at trial that at one time he intended to give at least part of his real property to Benjamin Rogers, which was a portion consisting of approximately ninety acres known as the Beverlin Farm. Everett Wine's property had previously been owned by Eb Rogers who was the husband of Benjamin Rogers' mother, Fern Rogers. When Eb Rogers died, the land descended to Eb Rogers' sons, Bill Rogers and Keith Rogers, subject to the dower rights of Fern Rogers. Everett Wine purchased the property from Bill Rogers and Keith Rogers, subject to Mrs. Rogers' dower interest. Mrs. Rogers had lived with Everett Wine at one time and they had one known son, the appellee, Benjamin Rogers. At one point in time, a handwritten deed was prepared and apparently signed by Everett Wine, which gave the property known as the Beverlin farm to Benjamin Rogers. This deed was never recorded. A second deed was prepared by an attorney on May 27, 1986. In that deed, Everett Wine conveyed all of his Doddridge County property, approximately 331 acres, to Benjamin and Gale Rogers, husband and wife, subject to the dower rights of Fern Rogers and a life estate of Everett Wine.
Testimony at trial revealed that Benjamin Rogers took this deed to his father's house sometime between May 27 and September 10. The deed was left in plain view at Mr. Wine's house and he was aware that it was there. There is some dispute as to whether Mr. Wine actually thought it was a deed, and there was testimony that he believed it was a will or some type of welfare paper.
On September 9, 1986, Charlene Fisher, a long-time acquaintance of Everett Wine, stopped in to visit him. She testified that she found the house in disarray, that Mr. Wine was living in quite unkempt conditions, and that he had been drinking alcohol. While cleaning in his room, she found the deed and read it. She questioned Everett Wine as to its existence and he is said to have replied that it was a deed or will, or something that Benjamin, his son, had brought for him to sign. At this time, the deed was not signed and Mr. Wine said that he had "not given anybody anything yet."
On September 10, Benjamin Rogers went to Everett Wine's home to discuss the conveyance. Mr. Wine at this point apparently agreed to sign the deed, so Mr. Rogers telephoned Fay Moore, a notary public, to see if she was available to notarize his father's signature. She was available at that time, so Mr. Rogers took his father to Fay Moore's home to evidence the signing of the deed. Fay Moore's testimony at trial revealed that Mr. Wine carried on a personal conversation with her and that there was nothing noteworthy or remarkable in his conduct. He did not read the deed in front of her, and she did not read it herself. Rather, she simply watched Everett Wine sign the deed and then notarized his signature.
Mr. Wine testified at trial, but died subsequent to trial. During his testimony, Everett Wine relayed his observations concerning the day he signed the deed. He testified that his son came to see him to take him to Fay Moore's house to sign the document. He said he did not give much thought to whether the document was a deed or a will. Mr. Wine admitted that he was not forced into signing it, that he signed it voluntarily without any threats.
Charlene Fisher testified that in the afternoon of September 10, she received a telephone call from Everett Wine. She said he was upset and asked her to come over to his house. When she arrived, he was "whining" around that he thought he had been "shafted" and that he had signed the paper that "Benny", Mr. Rogers, had left with him. Mrs. Fisher called the appellant, Emma Harper, Everett Wine's daughter, who lives in New Cumberland, West Virginia, and left a message for Emma Harper to call her. Charlene Fisher wanted to inform the appellant of the events that had occurred that day. Ms. Fisher also called Fay Moore, who confirmed that Mr. Wine had signed a deed that day.
On September 11, one of Everett Wine's other sons, Elton Wine, came to his father's house to take him to the dentist. Mr. Wine apparently told this son that he had signed a deed or a will the previous day. Elton Wine testified that he confirmed that his father had signed a document by calling his sister, Emma Harper. At the conclusion of the dental appointment, Mr. Wine was instructed by his dentist to go to Dr. Spencer, his medical doctor, for some pain medication. Elton Wine, prior to the doctor visit, had called Gale Rogers, appellee and grantee in the deed, to demand that she and her husband give back the paper Everett Wine had signed. Elton Wine told Mrs. Rogers he was on his way then to have his father declared incompetent by a doctor. While at the doctor's office, the situation with the conveyance must have been explained to Dr. Spencer, because the doctor wrote out a statement on a prescription pad to the effect that Everett Wine was "duped into signing papers," that he had not been of sound mind for one and one-half years, and that he was not at that time responsible for signing legal documents, due to the fact that he was "extremely forgetful."
Later, on the evening of September 11, appellee Gale Rogers, called Mr. Wine to discuss the conveyance. She testified that he told her he had signed the deed and that he had wanted to do so.
On the morning of September 12, Benjamin and Gale Rogers, the appellees, went to visit Everett Wine to discuss the deed. At this point, they had not yet recorded the deed. Both appellees testified that they offered to give the deed back, but that Mr. Wine did not express that rescinding it was his intention. When asked if he wanted them to have it recorded, Everett Wine replied that it was not any good if it was not recorded. After speaking with Mr. Wine, the appellees took the deed in question to the Doddridge County Courthouse and had it recorded.
Emma Harper, the appellant, testified that she found out about the conveyance on September 12. She said there was a message that she was needed in Doddridge County for her father. She went to her father's house on September 14 and her father told her he...
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