Hodges v. Wilson

Decision Date08 April 1914
Citation81 S.E. 340,165 N.C. 323
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Cumberland County; Lyon, Judge.

Action by Isham Hodges and others against A. R. Wilson and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Where part of an answer was not responsive, the answer should have been objected to on that ground, and a motion made to strike it, instead of objection being made to the question.

Where in an action to set aside a deed for lack of mental capacity and fraud, a witness who testified as to plaintiff's incapacity testified on cross-examination that he had traded with plaintiff, and did not know whether he cheated him or not, a question on redirect examination, whether witness ever took a deed for 116 acres from plaintiff, and told him it was for 10 acres, held proper.

This action was brought for the cancellation or reformation of a deed; the plaintiff alleging that it conveyed 76 1/2 acres of land, contrary to the agreement of the parties that it should pass only 10 acres, and that this was brought about by the fraud of A. R. Wilson, the grantee, and the mistake of Isham Hodges, the grantor, induced thereby. The original parties died pending the suit, and their heirs were brought in by order of the court. Plaintiffs amended their complaint by stating that Isham Hodges, their ancestor, was not mentally capable of making the deed at the time of its alleged execution. Evidence was taken, and, under the same and the charge of the court, the jury returned the following verdict which will fully explain the matters in controversy:

"(1) Did Isham Hodges, on the 25th day of June, 1910, have sufficient mental capacity to execute the deed in controversy? Answer: No.

(2) If not, did A. R. Wilson have knowledge of such mental incapacity? Answer: Yes.

(3) Did M. A. Hodges, his wife, have sufficient mental capacity on June 25, 1910, to execute the deed in controversy? Answer: No.

(4) If not, did A. R. Wilson have knowledge of such mental incapacity? Answer: Yes.

(5) Was the deed of June 25, 1910, procured to be executed by the fraud and misrepresentation of A. R. Wilson? Answer Yes.

(6) What consideration did A. R. Wilson pay for the execution of the deed of June 25, 1910? Answer: $75.00."

Isham Hodges had sold and conveyed to A. R. Wilson 40 acres of the tract containing 116 1/2 acres, and afterwards agreed to sell an additional 10 acres. Wilson drew the deed for 76 1/2 reciting a consideration of $300; whereas, only $75, the price of a buggy and harness, was actually paid by him. He represented that the deed conveyed only 10 acres, as agreed upon, and Isham Hodges, being old, infirm, and illiterate, and of unsound mind, was led by this false representation to execute the deed of June 25, 1910, in the form prepared by A. R. Wilson. There was evidence that the land was then worth $1,000. This is plaintiffs' version of the facts, which was denied.

The first exception related to the evidence of John Carter, a witness for plaintiff, who testified on his direct examination that he did not think Hodges was in his right mind about June 25, 1910, and on cross-examination testified that witness traded stock with him, and did not know whether he cheated him or not, that Hodges was able to take care of himself when he traded with witness, and that witness traded to the best advantage for himself, and that Hodges would not have taken such stock as witness gave him, if he had had good judgment, etc. On redirect examination witness was asked, "You never did take a deed for 116 acres, and tell him it was for 10 acres, did you?" this being in substance what it was charged defendant had done, which question was objected to, and constitutes defendants' first exception. The second exception covered an objection to a question to witness Godwin, who had stated that he had a conversation with Wilson after Hodges signed the deed to him, and after witness had bought 2 acres of land from Hodges; the question being, "Did he tell you anything about that deed?" (referring to Wilson), to which witness answered that he thereafter asked Wilson how much of the Hodges land he claimed, and Wilson said he did not know how much he got, when witness stated that the reason he wished to know was that he bought 2 acres, and supposed that Wilson claimed it, and that, if he could not fix it satisfactorily with Wilson, he thought that he could get his money back, whereupon Wilson said that he had had his own deed changed, so that witness' 2 acres were excepted.

The allegation of the amended complaint, which substituted the Hodges heirs for Hodges, as plaintiff, alleged that plaintiffs "are the children and heirs at law of Isham Hodges, deceased."

Clifford & Townsend, of Dunn, for appellants.

Sinclair & Dye and Shaw & MacLean, all of Fayetteville, for appellees.

WALKER, J. (after stating the facts as above).

There are many exceptions in this case, and we will consider them in their order as stated in the record.

First Exception. The question asked of John Carter, who testified to Isham Hodges' mental incapacity, was competent, as it was proper, in reply to the matter brought out on the cross-examination, and, even if erroneous, it was harmless, and could not have influenced the jury. Counsel were really engaged in cross-firing with small ammunition, and it turned out to be practically a bloodless encounter.

Second Exception. The testimony of H. P. Godwin as to his communications and transactions with A. R. Wilson was admissible; he not being an incompetent witness under Revisal, § 1631. The objection to this evidence must be overruled on several grounds: (1) At the time the question was asked and answered, it did not appear that the witness had any interest in the controversy. (2) The part of the answer relating to the communication is not strictly responsive to the question. Objection, therefore, should have been made to the answer, rather than to the question, and a motion submitted to strike it out. This is generally true when the answer is objectionable, and is not responsive to the question. It was held, in McRae v. Malloy, 93 N.C. 154, that if, on the examination of a witness, he makes a statement not responsive to a legitimate inquiry or foreign to it, the proper course is a request that the incompetent matter be stricken out or withdrawn, or that the jury be directed to disregard it, and there are numerous cases which require that course to be taken in order to save the party's rights. Deming v. Gainey, 95 N.C. 528, Wiggins v. Guthrie, 101 N.C. 661, 7 S.E. 761, and Blake v. Broughton, 107 N.C. 229, 12 S.E. 127, are some of them. (3) It does not appear that the testimony prejudiced the defendants, or could do so. On the contrary, it may all be true, and yet the deed be valid. It was therefore harmless. What he said was entirely immaterial to the controversy.

Third Exception. We do not see why it was not relevant to prove when the mistake in the deed was discovered. It tended to show that plaintiffs had acted with promptness and diligence in having the deed corrected or set aside after the discovery was made.

Fourth Exception. It was competent to show by nonexpert testimony that Isham Hodges was mentally unsound. Clary v. Clary, 24 N.C. 78; McRae v. Malloy, 93 N.C. 154; Smith v. Smith, 117 N.C. 348, 23 S.E. 270; Whitaker v. Hamilton, 126 N. C 465, 35 S.E. 815; Cogdell v. Railroad Co., 130 N.C. 326, 41 S.E. 541; McLeary v. Norment, 84 N.C. 235; Atwood v. Atwood, 84 Conn. 169, 79 A. 59, 37 L. R. A. (N. S.) 591 and notes.

Fifth and Sixth Exceptions. The court properly refused to nonsuit the plaintiffs. There was evidence to support their contentions which, upon such a motion, must be viewed most favorably to them. Snider v. Newell, 132 N.C. 614, 44 S.E. 354; Bivings v. Gosnell, 133 N.C. 574, 45 S.E. 942; Boddie v. Bond, 154 N.C. 359, 70 S.E. 824; Ball-Thrash Co. v. McCormick, 162 N.C. 471, 78 S.E. 303.

Seventh Exception. The issue tendered by the defendants was fully covered by those submitted by the court. When this is so, and opportunity is afforded to present the case in all its essential aspects, it is not error to reject the issue so tendered. Clark v. Guano Co., 144 N.C. 64, 56 S.E. 858, 119 Am. St. Rep. 931, and cases cited; Jackson v. Telegraph Co., 139 N.C. 347, 51 S.E. 1015, 70 L. R. A. 738; Main v. Field, 144 N.C. 307, 56 S.E. 943, 11 L. R. A. (N. S.) 245, 119 Am. St. Rep. 956; Johnson v. Lumber Co., 144 N.C. 717, 57 S.E. 518. Besides, the issue tendered by defendants was merely evidential.

Eighth Exception. This exception is taken to the fifth issue, and upon the ground that there is no evidence of fraud. But we think otherwise. The evidence tends to show that Isham Hodges was poor and in necessitous circumstances; that he was infirm in health, being afflicted with dropsy and heart disease to such an extent that he required constant medical attention for at least ten years; that his mind was greatly impaired and he was not capable of understanding the nature and effect of an ordinary business transaction; that he was frequently in a comatose condition, which produced a state of drowsiness or stupor; that he and his wife, who signed the deed with him, were both mentally incapable of executing a deed, both being "half-witted," as stated by a medical expert; the land was worth $1,000, whereas, the grantee only paid $75 for it, a grossly inadequate price, which would cause any one to exclaim that he practically got it for nothing; and there were also false representations made to obtain the deed. This recital, which does not, by any means, embrace all the facts, is sufficient to show the futility of this objection. What does the law, as...

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