Laughlin v. Ludgate

• Decision Date: 15 December 1931
• Parties: LAUGHLIN v. LUDGATE et al. [*]
• Court: Oregon Supreme Court

6 P.2d 20

138 Or. 442

LAUGHLIN v. LUDGATE et al. ^[*]

Supreme Court of Oregon

December 15, 1931

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Suit by Mabel C. Laughlin against Joseph Ludgate and others, wherein defendants filed a cross-complaint. Decree for plaintiff and dismissing the cross-complaint, and defendants appeal.

Affirmed.

This is a suit in equity, brought to reform a deed made, executed and delivered to plaintiff by Alonzo Ludgate on February 11 1930, so as to include therein certain property which plaintiff avers was omitted by mistake.

Thomas M. Byrne, as administrator of the estate of Alonzo Ludgate deceased, and Joseph and Kathryn Ludgate, heirs at law of Ludgate, answered plaintiff's complaint and prayed for a decree canceling the deed and likewise canceling a certain bill of sale of Ludgate's personal property executed in favor of plaintiff simultaneously with the execution of the deed, for the alleged reason that the consideration for the execution of these instruments was such that the transaction was rendered fraudulent as to Ludgate's estate and the creditors thereof, and that, at the time of the transaction Ludgate was mentally incompetent to transact business.

The reply put the averments of the answer at issue, and set up new matter embracing an alleged oral contract between plaintiff and Ludgate for the support of Ludgate from the date of the execution of the instruments until his death.

As a result of the hearing, the court made a decree granting the prayer of plaintiff's complaint, and dismissing defendants' cross-complaint.

The defendants have appealed.

Hugh E Brady and Henry L. Hess, both of La Grande (Hugh E. Brady and Green & Hess, all of La Grande, on the brief), for appellants.

Woodson L. Patterson, of Baker, for respondent.

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

The facts in this case as shown by the record are substantially as follows:

In 1901, Alonzo Ludgate came to Union county, Or., to make his home, and he continued to reside in that county until the latter part of January, 1930, when he took up his residence in the home of Mabel C. Laughlin, this plaintiff, where he remained until he died on March 11th following. He was usually known as a bachelor, although he had once been married, and had two children residing in the state of Washington, who, at the time of the trial, were about thirty years of age. He made the acquaintance of plaintiff and her husband in 1910 while they were living with their family on a farm in the Clover Creek district near his home. Not only were they neighbors, but they became close friends, and his friendship continued from that date until his death at the age of 73. Ludgate frequently worked for plaintiff's husband, and during such times lived at the Laughlin home. He made a will in plaintiff's favor in 1925.

It appears that, in 1921, plaintiff procured a divorce from her husband, and, since that time, has resided in Baker, where she has supported herself and reared her family of four children by her earnings as a teacher of music, having established classes in Baker and surrounding towns.

In the summer of 1929, Ludgate executed a will in favor of one Unzicker, a neighbor. On or about August 21, 1929, he entered Hot Lake Sanitorium for medical attention. After remaining for several weeks he left, but returned in a short time. About the second week in November he again left, and went to live at the Unzicker home, where he remained until December 20th, when he went back to his own home. It appears that, during Ludgate's stay at the Sanitorium, this plaintiff, while attending to her music class in Union, learned of her old neighbor's illness and drove to Hot Lake to visit him. She was present when a surgical operation was performed upon his body, and called to see him nearly every day thereafter until his convalescence was assured. On January 6, 1930, she received a letter from Ludgate, in which he inclosed a will executed on that date in her favor. The following Sunday she, with one of her sons called on Ludgate at his home. In the course of the visit Ludgate asked her if she would undertake the care of him for the balance of his life, and, in the event of illness, allow him to come to her home in Baker and live as a member of her family and be treated as her own father; if she would supply him with clothing, medical attention and care, and, upon his death, cause him to be buried at Island City and pay all just debts, including funeral expenses, in exchange for which he would convey to her all of his property. He told her that the will which he had already made, executed, and delivered to her was all that was necessary upon his part to convey his property to her, and that this will could be exchanged for a deed. In due time his offer was accepted. She stated to him, however, that she did not think a will could be exchanged for a deed, and he requested her to secure the services of some good lawyer. She later consulted with W. H. Strayer, a well-known lawyer of ability and integrity, who confirmed her statement in the matter. On January 31, 1930, Joe Harrison, a neighbor, at Ludgate's request telephoned plaintiff to the effect that Ludgate was ill and wished her to come to Island City and take him to her home in Baker. She took him into her home and gave him care, first taking him to Dr. C.J. Bartlett of Baker for examination and treatment. Dr. Bartlett made frequent calls upon him, and he improved temporarily and made another trip to Island City. He was frequently up and about the plaintiff's home, had sufficient strength to visit the barber shop, ate his meals, read the daily papers, and received many visits from his friends. Some days after his arrival at her home, he asked her if she had seen a lawyer about the will, and she told him of her conference with Senator Strayer. Thereupon, he requested that she have Attorney Strayer prepare a deed. He prepared the deed and a bill of sale, and personally called upon Mr. Ludgate at plaintiff's home on February 11, 1930, and took his acknowledgment to the deed. That the omission from the deed of a small tract of 7.9 acres was a mutual mistake of the grantor and the grantee is alleged in the complaint and fully established by the testimony of Senator Strayer.

Let us examine the testimony in relation to the mental capacity of Ludgate at the time of the execution of the deed in question.

Joe Harrison, long an intimate friend of Ludgate, testified that he lived as a near neighbor to Ludgate continuously for eleven years, and that Mr. Ludgate frequently took meals at his home; that he visited Ludgate many times-about every day-while he was a patient at Hot Lake; that he called upon him before and after his operation, and that Ludgate was all right mentally; that, after Ludgate returned from Hot Lake, he saw him frequently at Unzicker's, and still later, after Ludgate had moved back to his own place, he saw him very often. This witness also called at the plaintiff's home to see Ludgate, and he makes it plain that Ludgate seemed to be perfectly sane and like any other normal person 73 years of age.

Harrison's wife testified that she had been personally acquainted with Ludgate for a number of years; that she frequently visited him at Hot Lake and saw him almost every day after he returned from that place; that she, in company with her husband, visited him at the plaintiff's home in Baker; and that, in her opinion, Ludgate was at no time incompetent to transact business.

Mrs. Reece McAlister testified that she was acquainted with Ludgate, and that she frequently saw him; that she and her husband visited him at Hot Lake after his operation; and that he was at her home after he left the Sanitorium. She testified that, from her observation and association with Ludgate, it was her opinion that he was perfectly normal.

J. O. Anson testified that he had been acquainted with Ludgate for 26 or 27 years, and had known him intimately since about 1920; that he had purchased horses and cattle from Ludgate, and that throughout their transactions Ludgate was capable of looking after his business affairs. In fact, witness testified, "If you beat him on a horse trade, you had to get up early in the morning." This witness further testified:

"The first time I seen him after he came home (from Hot Lake), he walked up from the Unzicker place, which I should judge would be about 4 miles. ***

"Q. He walked over to your place? A. Yes, and settled a pasture bill. When he went to Hot Lake his horses, two of them, were in my pasture, and someone took them out, and he came over and settled it with my wife. He had it figured, and I said it was all right,-just then I came home. ***

"I think he visited my place two or three times while he was at Mr. Unzicker's place. *** I figured he was good mentally-just as bright as ever, I believe."

Witness also visited Ludgate two or three times after he went to plaintiff's home at Baker, spending four hours with him on the first visit and half an hour on the second. He testified that during these visits "he talked just like he always did-just the same. I didn't see any difference only he was weak."

W. H. Strayer, the attorney who prepared the documents whereby Ludgate disposed of his real and personal property, testified that he, in company with M. B. Strayer, his son and law partner, took the papers to plaintiff's home to have them executed by Ludgate, and that on that occasion he visited with Ludgate for perhaps half an hour. He further testified:

"Q. You say you had casually known...