McCalla v. Bane

• Decision Date: 20 April 1891
• Parties: McCALLA v. BANE et al.
• Court: U.S. District Court — District of Oregon

45 F. 828

McCALLA v. BANE et al.

United States Circuit Court, D. Oregon.

April 20, 1891

Syllabus by the Court

Act Feb. 25, 1889, (Sess. Laws, 75,) entitled 'An act to amend section 8101 * * * of the Annotated Laws of Oregon,' in which said section is set out as amended, is not in conflict with either section 20 or 22 of article 4 of the constitution of Oregon, as expounded by the supreme court of the state in State v. Phenline, 16 Or. 107, 17 P 572.

Said section, as amended, not only makes an illegitimate child the heir of its mother, but legitimates it, so that it may inherit through its mother, provided the parents were 'formally married,'-- married in form,-- and 'lived and cohabited as husband and wife,' although such marriage may be void in law.

The delivery of a deed by the grantor to a third person, to be given to the grantee at once, or on the happening of some future event, as his own death, is a good present delivery to the grantee, and vests in him the estate of the grantor; but it is otherwise if the grantor reserves to himself any future control over the deed.

The plaintiff having conveyed to another the 'undivided one-half' of the property involved in this suit before the commencement of the same, and it appearing that she claims as the heir of her father, and that as such heir she could not be entitled to more than one such half, she is without interest in the subject-matter of the suit, and cannot maintain the same.

The consideration in a voluntary conveyance cannot be contradicted or disproved by one claiming under the grantor by matter subsequent, as by descent, for the purpose of impairing the effect or operation of the same.

Plaintiff in her bill alleged that her father, James B. Stephens, being old and incapable of transacting business, was induced by the defendants to convey all his property to them, to the exclusion of the plaintiff, his lawful heir, and that said deeds were void for want of capacity in the grantor, and therefore ought to be set aside, and the plaintiff admitted to her inheritance. Found, that the plaintiff, years before her father's death, and continuously thereto, had so conducted herself as to incur his serious displeasure, and that such conveyances were made by him after long and careful consideration, free from the influence, persuasion, or suggestion of any one, for the purpose of bestowing his property on the defendants, his relatives and friends, for reasons satisfactory to himself, and commendable generally and to exclude the plaintiff from any benefit thereof; that at the time of signaling said deeds Stephens was both mentally and physically capable of executing the same, and fully comprehended the nature and effect thereof, the details of which he had planned in his mind long before, and then and there duly delivered the same to a third person, for the grantees therein named.

W Scott Beebe, John Gearin, and William B. Gilbert, for plaintiff.

James K. Kelly, Emmet B. Williams, and Paul R. Deady, for defendants.

DEADY J.

This suit was commenced on April 12, 1889, by Elizabeth McCalla, a citizen of the state of California, against the defendants Mary A. Bane, Henry Jones, Franklin T. Dick, C. H. Raffety, Rosetta Jones, James McAyeal, Harriet Bennett, and school-district No. 21, in Multnomah county, who are citizens of Oregon. On June 13th an amended bill was filed, making Samuel T. Stephens, J. W. Sexton, and India Simmons, also citizens of Oregon, defendants.

This suit was brought to have certain conveyances of real property, made by the father of the plaintiff, James B. Stephens, in his last illness, declared inoperative and void on account of the alleged incapacity of the grantor to execute the same, and for want of sufficient delivery.

In the bill it is alleged that the plaintiff is the only heir of her father; that on March 16, 1889, he being 83 years of age, and weak physically and mentally, and thereby rendered incompetent to transact business, the defendants, then and before intending and contriving to deprive the plaintiff of the property of her father, procured and forced him to sign a number of deeds conveying all the real property of the deceased, alleged to be worth $250,000, to them in severalty; that the defendants J. W. Sexton and India Simmons, although not named in said conveyances, claim an interest in said property.

On July 1st the defendants Henry Jones, Franklin T. Dick, C. H. Raffety, Rosetta Jones, James McAyeal, Harriet Bennett, and school-district No. 21, answered the bill jointly, and on August 5th Samuel T. Stephens answered, and Mary A. Bane, on the 6th of the same month, separately. By their answers these defendants admit that the plaintiff is the daughter of Stephens, but deny that she is his only heir, and allege that India Rolfe, now deceased, was his daughter, and that the defendants Rosetta Jones and J. W. Sexton are her children, and that India Simmons is her granddaughter, being the only child of her daughter Amanda Simmons, now deceased, and that, as the representatives of said India Rolfe, they are entitled collectively, under the laws of the state of Oregon, to one-half of the property of which Stephens died seised.

They also admit the conveyance of the real property of Stephens, as alleged in the bill, on March 14 and 20, 1889, but deny specifically all the allegations thereof concerning the incapacity of the grantor, and allege that the deeds executed on March 14th were delivered by the grantor to the grantees in person, and those on March 20th were delivered to John T. Stewart, under the advice of his counsel, then present, as and for the grantees therein named, to whom the latter afterwards gave them; that the defendants, nor neither of them, did nothing to influence the action of Stephens in this respect, and did facts of the case to be as follows: the execution of the conveyances; and that his mind was clear and comprehensive up to the last moment of his life.

On July 13th the defendants J. W. Sexton and India Simmons filed an answer, and what is denominated a 'cross-bill,' in which they allege the invalidity of the conveyances to the other defendants for the causes stated in the original bill, and aver that Stephens died intestate, and that they, with the defendant Rosetta Jones, are entitled in right of India Rolfe, the mother of the former and grandmother of the latter, to an undivided one-half of his estate.

The other defendants in the original bill answered the cross-bill, admitting that the plaintiffs therein, together with the defendant Rosetta Jones, are heirs of James B. Stephens, as therein alleged, and that he died intestate, but allege that he conveyed all his property to the defendants in the cross-bill except Elizabeth McCalla, and that said conveyances were made of the grantor's own free will and while he was of sound mind and memory, and delivered by him in person to some of the grantees and to John D. Stewart for the others.

The answer of the plaintiff to the cross-bill admits the allegations therein concerning the execution and delivery of the deeds, but denies that J.W. Sexton, India Simmons, or Rosetta Jones are heirs of James B. Stephens, and alleges that one Edward S. Sexton and Angeline Belshee were duly married in the state of Illinois in the year 1848; that in the year 1850 said Sexton deserted his wife, and came to Oregon, where he lived until his death, in the year 1877; that India Stephens was the daughter of James B. Stephens and sister of the plaintiff; that J. W. Sexton, Rosetta Jones, and Amanda Simmons are the illegitimate issue of Edward S. Sexton and India Stephens, who were never married; that said Amanda died in 1884, leaving an only child, India Simmons; and that said Edward S. Sexton and Angeline Belshee were never divorced.

Replications were duly filed to the several answers, and much testimony taken pro and con, before an examiner of this court.

On the hearing, the bill of the plaintiff was dismissed as to Samuel T. Stephens and Harriet Bennett, on the statement of counsel that the plaintiff would not further contest the validity of the deeds made on March 14th.

After careful consideration of the evidence I find the material facts of the case to be as follows:

1. In 1844, James B. Stephens and Elizabeth, his wife, settled on a tract of the public lands, containing 640 acres, which they afterwards acquired under the donation law, lying on the east side of the Wallamet river, opposite Portland, on which the town of East Portland has since been laid out and built up, and resided there continuously during the rest of their lives.

2. The children of these people were a son, James B., long since dead, the plaintiff, India, who first married one Alderman, and after his death was formally married in 1851, in her father's house, by a minister of the Methodist Church,-- the Rev. James H. Wilbur,-- to one Edward S. Sexton, with whom she afterwards lived and cohabited as husband and wife in Oregon, until the death of the latter in 1870, after which she married one Rolfe, and died before her father, in 1878.

3. Said Sexton, whose full name was Edward Styles Sexton, was married in Fulton county, Ill., in January, 1843, to Angeline Belshee, and lived there with her until 1850, when he came to Oregon, and was married to India Alderman, as above stated, without being then or at any time divorced from said Angeline. The issue of this marriage were the defendants Rosetta Jones and J. W. Sexton and Amanda Simmons, who died in 1884, leaving an only child, the defendant India Simmons, which children were and are, as a matter of fact, illegitimate.

4. The plaintiff, Elizabeth McCalla, is near 50 years of age, and at the commencement of this suit was a citizen...