Keithley v. Keithley

• Decision Date: 31 October 1884
• Citation: 85 Mo. 217
• Parties: KEITHLEY et al., Appellants, v. KEITHLEY.
• Court: Missouri Supreme Court

85 Mo. 217

KEITHLEY et al., Appellants,

v.KEITHLEY.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Ralls Circuit Court.--HON. THEO. BRACE, Judge.

AFFIRMED.

W. H. Biggs for appellants.

(1) The court committed error in refusing either to submit to the jury, or itself to try the first, second and third issues, or either of them, as made by the pleadings. The first issue is certainly a material one. The defendant does not claim, and the deed itself negatives the idea that the conveyance was made as a gratuity. Courts of equity will not permit one to accept a conveyance for a consideration, and afterwards set it up as a gift. Cadwallader v. West, 48 Mo. 495. The trial court could not take the verdict of the jury upon a part of the issues, and then proceed to render judgment on the whole case without trying the remaining issues. Leeper v. Lyons, 68 Mo. 216. (2) The court erred in excluding the testimony of Dr. George E. Frazier. Dr. Reynolds had testified that Rowland Keithley was afflicted with epilepsy, and Dr. Frazier, who was a practicing physician of long standing, ought to have been permitted to testify as to the effect of the disease on the mind of a patient. An expert may be asked general questions as to the laws of mental disorder, or decay, for the purpose of enabling the jury to weigh and apply the testimony. Abbot's Trial Ev., 117; 1 Greenl. Ev., sec. 440. (3) The court erred in withdrawing the fifth issue from the jury. The uncontradicted evidence of plaintiffs showed that a confidential relation existed between the defendant and his father, and that defendant had, by a long residence (interrupted for only about one year) with his father, acquired great influence over him, and hence the father was anxious for the defendant to come back to live with him. And the evidence in the case at least showed that the mind of the father had become greatly weakened and impaired by old age and disease. These facts being shown, the presumption that the deed in controversy was unfairly obtained, at once arises, and the burden is on the defendant to affirmatively show that the deed was executed fairly and freely by the father, and with a mind emancipated from the son's influence. Cadwallader v. West, supra; Garvin v. Williams, 44 Mo. 465; Harvey v. Sullens, 46 Mo. 147. (4) When weakness of mind is shown, and circumstances of undue influence by the other contracting party, a court of equity will interfere. Tracy v. Sackett, 1 Ohio St. 60; Gartside v. Ishwood, 1 Brown's Chan. R. 560; 1 Story's Eq., sec. 238; Cruise v. Christopher's adm'r, 5 Dana 181; Whiteburn v. Heimes, 1 Munford 557; Buffalo v. Buffalo, 2 Dev. & Bat. Chan. R. 241. When undue influence has once been acquired and operated on a party in the disposition of his property, it is not necessary to show that the undue influence was actually exerted at the time of the disposition of the property. Taylor v. Wilburn, 20 Mo. 306.

Redd & Harrison for respondent.

(1) While in an action at law the parties have the right to demand the trial of all the issues by a jury, no

such right exists in a court of equity. 1 Story's Eq., secs. 31 and 190; Dale v. Roosevelt, 6 John. ch. 256; LeGuin v. Gouverneur, 1 Johns. Cases, 436; Burt v. Rynex, 48 Mo. 309; Hickey v. Drake, 47 Mo. 371. (2) There was no testimony tending to show that Rowland Keithley acted under duress. The onus of the issue was on plaintiff, and he failed to make out his case. Fraud will not be presumed in any case where the facts consist as well with honesty as with fraud. State ex rel. v. Roberts, 26 Mo. 533; Henderson v. Henderson, 55 Mo. 554; Rumbold v. Parr, 57 Mo. 592; Ames v. Gilmore, 59 Mo. 543. (3) The law presumes that every adult person is sane, and has the capacity to contract. This legal assumption is based on a fact of which every court will take judicial notice, viz.: that sanity is the normal condition of the human mind, insanity the abnormal. Jackson v. Vandusen, 5 John. 158; White v. Wilson, 13 Vesey, Jr., 88; Jackson v. King, 4 Cowen, 216; Attorney General v. Paranther, 3 Bro. C. C. 443; 1 Jarman on Wills, 72 and 74; 2 Starkie on Evidence, 1276. Non compos mentis, in English, “not of sound mind,” is a legal phrase, and imports a total deprivation of sense. Jackson v. King, 4 Cowen, 217; Odell v. Buck, 21 Wend. 143; Stewart's exec'r v. Lispenard, 26 Wend. 300; The Barker Case, 2 John. ch. 233; Ex parte Cramer, 12 Vesey, Jr., 450 to 452; Burley's case, 4 Coke 123. A person being of weak understanding, “provided he is neither an idiot nor a lunatic,” is no objection in law to his disposing of his property. The law will not undertake to measure the understanding of a man. If he be legally compos mentis, be he wise or unwise, in contemplation of law, he is the disposer of his own property; his will stands as a legal and sufficient reason for his actions. Shepherd on Lunacy, 37; Stewart v. Lispenard, 26 Wend. 301. The fact that the mental faculties have been weakened or impaired by old age, disease, or other causes, in and of itself, affords no ground for impeaching a deed or will, provided the party be compos mentis in the legal import of the term.

DEARMOND, C.

Rowland Keithley owned three hundred and forty-two acres of land in Ralls county, worth about seven thousand dollars, and had some money, live stock, notes, and other personalty. In 1869 he made a will, in which he devised ten acres to his son, James T., and one hundred acres to another son, John C., and directed the general distribution, in a specified way, of the residue of his property, among his children and grandchildren. His children, of whom eight survived him, were all grown. One daughter had died, leaving two children. Some were very poor, especially a widowed daughter with a large family of girls. John C., the defendant, was married, but had no children. He had been a sufferer from asthma from his third year, and had remained with his father on the farm. In 1874 he moved off. His chief reason for going was his dissatisfaction because his father would not convey to him by deed a portion of the farm. He feared the will might be changed, or the one hundred acres otherwise disposed of, so that he would not get it. In January, 1876, after his store over in Illinois had been burned, he visited his father, then living alone at the old home, for the purpose, he says, of renting some land, but instead of offering to rent he proposed to move back and care for the old man, during the remainder of his life, if the latter would deed him two hundred acres. The father was willing to give him one hundred and fifty acres; and on a very cold day, the second after the son's arrival, January 21, 1876, they went together to New London, eight or ten miles distant, when and where was executed, acknowledged and recorded, the deed--a general warranty--to set aside which, the other children and heirs of Rowland Keithley, brought this suit. The one hundred and fifty acre tract conveyed was worth about four thousand dollars. The consideration expressed is “the care and support of said Rowland Keithley, and ten dollars.” John C. moved back and took possession of the one hundred and fifty acres, his father living with him until January, 1878, when the latter, then between eighty and eighty-seven years old, died.

It is charged in the petition that the deed was without consideration; that the consideration was grossly inadequate; that John C. obtained the deed by fraud and coercion; that Rowland Keithley was so weakened in mind from old age, habits of intemperance and disease that he was not capable of making a valid conveyance.

The court submitted these issues to a jury:

“1. Was the mind of Rowland Keithley so impaired by old age, disease, or otherwise, that he did not have sufficient capacity to make a contract?

2. Was said deed procured from Rowland Keithley by duress, fraud, or undue influence exercised over him by the said John C. Keithley?”

This issue was withdrawn after all the evidence was in. It also appears from the record that at some time, apparently at the conclusion of the evidence, the court submitted this further issue:

“At the time of the execution of the deed from Rowland Keithley to John C. Keithley, was...