McKinney v. Hensley

• Decision Date: 31 October 1881
• Citation: 74 Mo. 326
• Parties: MCKINNEY et al., Appellants, v. HENSLEY
• Court: Missouri Supreme Court

74 Mo. 326

MCKINNEY et al., Appellants,

v.HENSLEY

Supreme Court of Missouri.

October Term, 1881.

Appeal from Carroll Circuit Court.--HON. E. J. BROADDUS, Judge.

AFFIRMED.

Charles A. Winslow and J. L. Mirick for appellants.

In the case at bar, we have the concurring elements of old age, physical and mental weakness and want of consideration, without any apparent reasons for the transaction, in connection with something stronger than mere suspicion that actual fraud and undue influence existed. All the cases agree that such a bargain cannot stand. Freeland v. Eldridge, 19 Mo. 325; Cadwallader v. West, 48 Mo. 483; Perkins v. Scott, 23 Iowa 237; Seeley v. Price, 14 Mich. 541; Ellis v. Mathews, 19 Texas 390; Allore v. Jewell, 94 U. S. 506; Tracy v. Sackett, 1 Ohio St. 54; Walker v. McCoy, 3 Head (Tenn.) 103. Equity will not permit a party to take a conveyance for consideration, and thereafter set up the same conveyance as a gift. Cadwallader v. West, 48 Mo. 483; Clarkson v. Hanway, 2 P. Wms. 203; Kerr on Fraud and Mistake, p. 191. Whether viewed as contracts or gifts, the confidential relations existing between the parties would render the deeds invalid independent of the other objections urged against them. “The natural relation of the parties was reversed in this instance by the influence of time. The parent had become a child, and the child was guardian to the parent.” Highberger v. Stiffler, 21 Md. 353; Yosti v. Laughran, 49 Mo. 594; McCormick v. Malin, 5 Blackf. 523; Beauland v. Bradley, 2 Smale & G. 339; Sanfley v. Jackson, 16 Texas 584; Millican v. Millican, 24 Texas 426; Bundy v. McKnight, 48 Ind. 502; Garvin v. Williams, 44 Mo. 465; 50 Mo. 206; Harvey v. Sullens, 46 Mo. 147; 48 Mo. 483; Street v. Goss, 62 Mo. 226: Rankin v. Patton, 65 Mo. 378; Bradshaw v. Yates, 67 Mo. 221; Ford v. Hennessy, 70 Mo. 580; McClure v. Lewis, 72 Mo. 314; Miller v. Simonds, 72 Mo. 669. The only reasons offered to relieve this case from the effect of the confidential relations on the one hand, and the mental weakness and want of consideration on the other--each raising similar presumptions and calling for like explanations--are that Mr. Hensley possessed a limited amount of intelligence, and expressed satisfaction with what he had done. This falls far short of meeting the necessities of the case. The relation in one case, and the facts in the other, raise a presumption of undue influence and fraud, which puts upon the representatives of Joseph Hensley the burden of showing the exercise of the highest degree of good faith on his part, and that the transaction is in every particular worthy of receiving the sanction of a court of equity, and this, too, in the clearest and most satisfactory manner. 72 Mo. 314; 72 Mo. 669; 46 Mo. 147; 62 Mo. 226.

Hale & Eads and M. C. Shewalter for respondent.

Proof of old age and paralysis is not of itself sufficient to establish incapacity; there must be further proof that unsoundness of mind was the actual result. Did the paralysis extend to his mind? Did the capacity remain to see things in their true relation--to transact business like that in question? Weakness of understanding, or intellectual capacity below the average of mankind, if there be no fraud, or no undue advantage be taken, is not of itself adequate ground to set aside a transaction. Kerr on Fraud, p. 146; Young v. Stevens, 48 N. H. 133; s. c., 2 Am. Rep. 202; Van Alst v. Hunter, 5 Johns. Ch. 148; Doggett v. Lane, 12 Mo. 219; Van Pelt v. Van Pelt, 30 Barb. 134; Ex parte Holyland, 11 Ves. 11; Jackson v. King, 4 Cow. 217; Dennett v. Dennett, 44 N. H. 538.

NORTON, J.

This suit was instituted in the circuit court of Carroll county by the heirs of James Hensley, deceased, to set aside two deeds made by their ancestor to his son Foster Hensley, conveying to him certain land in said county. One of the deeds was dated 21st of September, 1874, and acknowledged the 24th of the same month; the other was dated the 22nd of December, 1875, and acknowledged the same day. The first was a deed of general warranty executed by said Hensley alone, the second was a quit-claim executed by said Hensley and also by his wife. Both of them conveyed the same land. The grounds alleged in the bill for vacating and setting aside these deeds are substantially that said James Hensley was at the time of their execution of unsound mind and wholly incompetent and unfit to manage his affairs; and that said deeds were obtained by fraud, misrepresentation, constraint and undue influence. These allegations of the petition were denied in the answer, and upon the trial of the cause, the court found the issues for defendant and entered judgment accordingly, and it is this finding and judgment we are asked to review on plaintiff's appeal therefrom.

While the evidence in the record shows that James Hensley, the grantor in these deeds, was about seventy years of age, and in the month of August, 1874, was stricken with paralysis which greatly impaired both his powers of mind and body, it falls short of showing that he was incapable of contracting or that he did not understand and comprehend the nature of the business he was transacting. All the witnesses who spoke on that subject testified that prior to his attack of paralysis “his mind was good,” that “he was a firm man,” “with good business habits.” Four of the plaintiffs testified in the case, all of whom concurred in the statement that after said attack said Hensley was not capable of transacting business.

Four other witnesses were examined on the part of plaintiffs; one of whom, John Calvert, testified that after said attack said Hensley appeared to be entirely helpless; his tongue was so paralyzed that he could not understand him; his wife interpreted for him; could not state the condition of his mind in August and September, 1874, because I could not understand him. His answers to my questions as uttered to me by his wife, were intelligent. When I first saw him in 1874, could tell nothing about his mental condition; after I could understand him, I never regarded him as insane; I only mean that his mind was weak * * I never regarded his mind as unsound or insane.

Charles Kuhn, another of plaintiffs' witnesses, testified as follows: Have known Hensley since 1864. He was a fair business man before sickness; saw him first after his sickness in fall or winter of 1874; very difficult to understand him at that time. He had frequent crying spells when talking to me. I saw him five or six times during sickness; could not see any change in his mental condition. He would always cry when talking of his family. He would sometimes say he was dissatisfied with a part of his family, and say they had mistreated him, and then he would complain of others; sometimes complain of one and then another. I talked with him about our business. He talked intelligibly, and I thought he was hard on me; only cried when he talked of his family. I had two suits against him. He settled them with me through an agent, Mr. Darr. He talked intelligently about our business. I thought he was hard on me in the settlement. Never saw any difference in his mental condition from the first time I saw him (after his sickness) until the last. I did not see anything in the settlement that indicated weakness of mind.

K. Rogers testified as follows: Have known Hensley since 1864; lived on his land a part of the time; since then have lived in DeWitt; knew Hensley well all the time before sickness; his mind was good; regarded him as a firm man; did not see him until the election in November, 1874, after his sickness; talked with him on that day in Hanmer's drug-store some three-quarters of an hour. He was very weak in body and mind. He had been hauled in to vote, and had to be helped out of the conveyance; his conversation was very indistinct, and one had to be very particular to understand him. I considered his conversation very...