Kadogan v. Booker

• Decision Date: 01 March 1951
• Docket Number: No. 10302,10302
• Citation: 66 S.E.2d 297,135 W.Va. 438
• Parties: KADOGAN et al. v. BOOKER et al.
• Court: West Virginia Supreme Court

Page 297

66 S.E.2d 297

135 W.Va. 438

KADOGAN et al. v. BOOKER et al.

No. 10302.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 16, 1951.

Decided March 1, 1951.

Syllabus by the Court.

'Where the only error assigned as a ground for the reversal of a decree is the failure of the evidence to sustain it, unless the evidence opposed to its finding clearly preponderates it will be affirmed.' Syllabus, Coulter v. Coulter, 127 W.Va. 710, 34 S.E.2d 330.

James M. Henderson, Beckley, for appellants.

Ross & Ross, Beckley, for appellees.

GIVEN, Judge.

This appeal involves the correctness of the ruling of the Circuit Court of Raleigh County in setting aside a deed executed October 13, 1948, by Laura Swain, a widow, conveying into Christopher C. Booker Lot No. 22 of Section 24 of the Lilly Land Company Central Addition to the City of Beckley, and Lot No. 1 of Section 25 of that addition. Lot No. 22 was acquired by Laura Swain by direct purchase and Lot No. 1 was acquired by her under the will of her husband, Harrison Swain, who died September 7, 1948. A small frame dwelling situated on Lot No. 1 was occupied by Harrison Swain and Laura Swain as their home until the time of his death, and thereafter by her until her death, November 17, 1948.

The bill of complaint charges that Booker, knowing that Laura Swain was sick and enfeebled in body and mind, corruptly contrived, schemed, and with intent to defraud, did, by persistent and undue persuasion, importunity and false promises, induce Laura Swain to execute the deed, and that she did not know the true import or meaning of her acts; that the 'purported deed was not the act and deed of said Laura Swain by her free agency, but that the same was procured by said Christopher C. Booker through the corrupt, fraudulent and dishonest practices and means aforesaid, by which the will and intent of said Laura Swain, were, by said Christopher C. Booker, wholly overpowered and controlled'; and that Booker did not pay or give unto Laura Swain any consideration whatsoever for the conveyance.

The deed recites that Laura Swain reserved a life estate in the property conveyed, and the consideration therein recited is '* * * the sum of One ($1.00) Dollar, cash in hand paid by the party of the second part to the party of the first part, and in further consideration of the said party of the second part agreeing to make the necessary repairs upon the real estate of the said party of the first part hereinafter described, and other considerations hereinafter mentioned, * * *.'

At the date of the execution of the deed Laura Swain was approximately seventy-five years of age, had been blind for several years, and was practically deaf. She was suffering from 'malignant hypertension', a condition involving the 'heart, blood vessels and kidneys, with excessive high blood pressure, with general arterial sclerosis, and with a degenerative condition of the kidneys', as testified to by Dr. A. D. Belton. Dr. Belton also testified that '* * * such a condition may or may not affect an individual's mentality. It would depend on just how well the organs function in spite of the degenerative condition. And if the kidneys degenerate to the point where they fail to secrete especially the nitrogenous substances of the body, there usually is mental deterioration along with it, but there are quite a number of individuals who can have this same type of things, and some I have under observation at present, who don't show any mental deterioration.' He also stated that 'with a condition of this type, there is a gradual deterioration', and that Laura Swain had been suffering with such ailments for at least fourteen years. Her husband died about two months before the date of the deed. They had no children, and the plaintiffs, Delena Kadogan and George Thornton, sister and brother of Laura Swain, were her next of kin.

The sister and her daughter, Mattie Swain, residents of Illinois, came to the Laura Swain home immediately after the death of Harrison Swain and remained with her until after the execution of the deed. Apparently the relatives of Laura Swain were attempting to find some person who would live in the Laura Swain home and furnish her necessary care and assistance. Booker, about seventy years of age, a resident of Washington, D. C., and a distant relative of Laura Swain, came to the Frank Swain home, where Laura Swain was then staying, about one week before the date of the deed. The matter of the care of Laura Swain was apparently discussed by the relatives of Laura Swain and Booker, and on October 13, 1948, Booker, with J. S. Butts, an attorney at law of Beckley, came to the home of Frank Swain, with the deed already written, and, the deed having been read to Laura Swain, she affixed her mark thereto, with the assistance of Mr. Butts, who, as a notary public, certified her acknowledgment thereof.

When asked whether Laura Swain understood the transaction, Fannie Swain, present at the time of the execution of the deed, stated: 'I don't think she did fully, because at the time, during the time that he read it to her, she would just shake her head, or say, 'uh-uh." When asked what Booker was doing at the time the deed was being executed, this witness stated: 'Well, he was just patting her. She said, 'What is that?' He was just patting her on the shoulder, and told her everything was going to be all right.' Mattie P. Swain, present at the time of the execution of the deed, testified: 'Well, I couldn't say she understood it all, No. sir. You see, it was read. She was deaf, and hard to understand. Some of the things she said she understood, some of the things she didn't.' J. B. Swain was asked: 'She told you at the time she signed the papers she didn't know what she was doing?'; and his answer was, 'That's right.' Mansion Clark, who lived near the home of Laura Swain and saw her almost daily, asked her if she had conveyed her property to Booker and testified that, 'She told me she hadn't, and I told her she had, and she said, 'No, I haven't,' so I said, 'Well, you go to Lawyer Butts and ask him,' and she called him and he told her 'yes,' and she said, 'I aint done no such a thing,' * * *.' The attorney was consulted concerning the matter, and apparently wrote Booker, who had returned to Washington. Mattie P. Swain testified that she later, with Delena Kadogan, went to the attorney's office concerning the matter, and that they read a letter from Booker, and that 'The contents of the letter read something like this, said, 'Mr. Butts, in receipt of your letter concerning Mrs. Laura Swain, about--concerning Mrs. Laura Swain's property.' He said, 'It is immaterial to me. If she doesn't want me to have the property I don't want it, and I will turn it back over to her.' It seems that Mr. Butts had written him a letter. He said Mrs. Swain wanted her property back, you see, because he hadn't stayed in the house, as he had promised her. That was the letter. So when I went to Mr. Butts to get the letter Mr. Butts said he couldn't find it, because he hunted the letter. We never saw it again. But he said the letter was misplaced, and he hadn't been able to find it.' Delena Kadogan testified to the same effect. The attorney did not testify, and Booker did not mention the letter in his testimony.

It seems clear from the evidence that Booker understood that he was to care for Laura Swain at her home for the remainder of her life. Mattie P. Swain was asked: 'Now, at that time did you and your mother ask Mr. Booker to take care of Laura Swain?', to which she answered: 'We didn't ask him. He told he--said, 'I will stay here and take care of Laura,' and we said, 'Well, if you will do that all right then. That will be fine if it is satisfactory with Laura.'' This witness was asked about a paper being read at Mr. Butts' office and stated: 'Well, I don't remember just what it was all about, but it was concerning Laura Swain's property being turned over to him providing he stayed in the home and took care of her her lifetime. That was the subject of it.' Fannie Swain was asked: 'Why did she want it (the property) back?', to which she answered: 'Well, because Mr. Booker was supposed to have stayed in her home and took care of her, and didn't. She said she wanted it back, and she said she didn't want him to have anything she had.'

Within about a week after the deed was executed Booker returned to Washington and did not see Laura Swain again during her life. He made no provision for her care in his absence and apparently had no intention of returning to her home, or to in any way provide for her care. Part of the consideration for the conveyance, as recited in the deed, was that Booker was to 'make necessary repairs to the property', but nothing was done by him toward making any repairs, unless his assistance to three other persons in painting two rooms and a hallway in the residence be so considered. As to why he left the home of Laura Swain, Fannie Swain testified: 'Well, he got mad at Miss Laura. That is why he left.' This witness also testified: 'Well, it don't look to me like he ever did anything for her. He didn't do anything for her. Q. Did you ever hear him curse, or say anything out of the way? A. Yes. He told her the night she had asked him for her money, well then, when she asked him for it at the table why he got angry with her, and told her he didn't want a 'd' thing she had.' It is not disputed that J. B. Swain and his wife lived with Laura Swain at her home and rendered her necessary care and assistance from the time of the execution of the deed until her death.

Mattie P. Swain, fifty-two years of age and a niece of Laura Swain, often visited in the Laura Swain home and was at the home for about two weeks after the death of Harrison Swain. She knew of the physical condition of Laura Swain and, in trying to describe her mental condition, she testified:

'Q. I believe you stated that some of the time ...