Mettetal v. Hall

• Decision Date: 09 March 1939
• Docket Number: No. 10.,10.
• Citation: 284 N.W. 698,288 Mich. 200
• Parties: METTETAL v. HALL et al.
• Court: Michigan Supreme Court

288 Mich. 200

284 N.W. 698

METTETAL

v.HALL et al.

No. 10.

Supreme Court of Michigan.

March 9, 1939.

Suit in equity by Jerome Mettetal, as guardian of the estate of Eliza Dunning, a mentally incompetent person, against David Hall and another for rescission of a contract and for cancellation of instruments made in pursuance thereof, and other relief. From a decree for plaintiff, defendants appeal.

Affirmed.Appeal from Circuit Court, Wayne County; Mark D. Taylor, judge.

Argued before the Entire Bench.

Welsh, Bebout & Hill, of Detroit, for appellants.

James Gibbons and Jerome Mettetal, in pro per., both of Detroit, for appellee.

POTTER, Justice.

The bill of complaint herein was filed by plaintiff as general guardian of Eliza Dunning, an alleged mentally incompetent person, to set aside a conveyance of real estate from her to defendants and a conveyance of real estate from defendants to Eliza Dunning; for an injunction, accounting and general relief, on the ground Eliza Dunning was mentally incompetent to enter into the transaction, and fraud claimed to have been practiced by defendants upon her. Defendants deny all material allegations of plaintiff's bill of complaint, allege the property traded to her was worth much more than that which they acquired, and set up certain matters which they claim estop plaintiff from maintaining this suit, and ask that the bill of complaint be dismissed. After hearing the testimony, the trial court filed a written opinion and entered a decree for plaintiff. Defendants appeal, claiming the decree entered is contrary to the weight of the evidence, that defendants did not defraud or overreach Mrs. Dunning when she was mentally and physically feeble, that the court should have granted a rehearing. No other or different questions are raised by plaintiff. Since the case was tried in the circuit court, there has been a substitution of attorneys, and defendants appeal.

1. It is contended plaintiff may not maintain the bill of complaint because it was necessary for plaintiff, before he could file a bill in this case, to restore or tender back to the defendants whether was received by Mrs. Dunning upon the exchange of the properties in question.

Restoration or tender before suit is wholly superfluous as a prerequisite to a suit in equity for rescission or cancellation. This suit is one in equity for rescission of the contract made between the parties and for cancellation of the instruments made in pursuance thereof. Jandorf v. Patterson, 90 Mich. 40, 51 N.W. 352;Witte v. Hobolth, 224 Mich. 286, 195 N.W. 82;Maurer v. Iden, 242 Mich. 568, 219 N.W. 655;Lightner v. Karnatz, 258 Mich. 74, 241 N.W. 841;Himebaugh v. Chalker, 261 Mich. 80, 245 N.W. 576; 6 Pomeroy's Equitable Remedies, § 688.

2. It is not denied that the property received by Eliza Dunning from defendants was sold under a prior existing mortgage lien before the commencement of this suit.

It is a general rule that where the property has been so sold, restoration or tender is superfluous as a prerequisite to the commencement of suit for rescission. Lewis v. White, 16 Ohio St. 444;Henninger v. Heald, 51 N.J.Eq. 74, 26 A. 449; 2 Black on Rescission & Cancellation, § 618.

3. It seems to have been the established rule of the common law that it was proper that the person alleged to be mentally incompetent should appear before the chancellor for inspection. Abbot of Strata Mercella's Case, 9 Coke's Rep. 31 a; 3 Blackstone's Commentaries, p. 332. In case mental incompetency became involved in such a way that the mental condition of a person was to be determined by the jury, inspection by the jury was an allowable mode of acquiring knowledge on an issue of insanity. 1 Hale's Pleas of the Crown, pp. 29, 33. See, also, 2 Wigmore on Evidence, § 1160.

4. It was competent for the trial court to visit Mrs. Dunning. The fact she had been found mentally incompetent and a guardian had been appointed over her by reason of her mental incapacity was not sufficient to prevent her being sworn. Evans v. Hettich, 7 Wheat, 453, 470, 5 L.Ed. 496;District of Columbia v. Armes, 107 U.S. 519, 521, 2 S.Ct. 840, 27 L.Ed. 618;Pittsburg & W. R. Co. v. Thompson, 6 Cir., 82 F. 720;Czarecki v. Seattle & S. F. R. & Nav. Co., 30 Wash. 288, 70 P. 750;Coleman v. Commonwealth, 66 Va. 865,25 Grat. 865, 873,18 Am.Rep. 711;State v. Simes, 12 Idaho 310, 85 P. 914,9 Ann.Cas. 1216;People v. Enright, 256 Ill. 221, 99 N.E. 936, Ann.Cas.1913E, 318;State v. Berberick, 38 Mont. 423, 100 P. 209,16 Ann.Cas. 1077;Cuesta v. Goldsmith, 1 Ga.App. 48, 57 S.E. 983;McKinstry v. Tuscaloosa, 172 Ala. 344, 54 So. 629; Bowdle v. Railway Co., 103 Mich. 272, 61 N.W. 529,50 Am.St.Rep. 366; 1 Wigmore on Evidence, §§ 492 to 498.

5. James Gibbons appeared as attorney for plaintiff. When plaintiff was upon the stand he said: ‘Mrs. Dunning is weak in body, being 83 years of age. It is not possible for Mrs. Dunning to come down to the courtroom. It would be a hazardous thing to come here, from her health standpoint. It is my desire to have this court interview Mrs. Dunning and see her, and I am saying this and qualifying my answer: If she had an opportunity to talk with the court, her answers even might be prejudicial to my situation in this case, but I think that insofar as the court has heard all of the evidence that has been submitted and heard all of our story, whether her conversation with the court would be detrimental to our side or not, it might clarify this atmosphere and assist the court in arriving at a true solution of this tangled problem, and for that purpose I would welcome an opportunity, if it could be arranged, that the court could talk with Mrs. Dunning.’

There was colloquy in relation to the court viewing the property in controversy. Mr. Gibbons suggested: ‘I know it is the desire of the court to investigate such matters in order to have a clear understanding, and it is my suggestion that the court, together with the court reporter, Mr. King and Mr. Mattetal do that thing. * * * Outside of the testimony-or the interview with Mrs. Dunning, if the court will grant that interview, why that is our case.’

Mr. King, for defendant, referring to the interview with Mrs. Dunning, said:

‘It seems to me that that would be a useless ceremony, in view of the fact she has been declared insane. * * *

‘I have no objections to the court making the trip, if he feels that it is necessary, but I do think the testimony of an incompetent person is not of much consequence.’

‘The Court: Well, we might go out, look at the property and interview this person, see what the result is. Is that agreeable to you?

‘Mr. King: Yes, your Honor.’

The court, the court stenographer, plaintiff and defendants' attorney visited Mrs. Dunning. She was not sworn, and it is contended her statement made in pursuance of this arrangement is improperly in the record and not proper to be considered.

Witnesses should give their testimony under oath. But, there was a waiver of the provisions of the law. And where the provisions of the law are waived in the conduct of a trial, they cannot afterwards be set up by way of objection to any step taken upon the footing of such waiver. Bigelow on Estoppel, 6th Ed., p. 785.

Where one, in possession of a legal right, waives it, he is precluded from claiming anything by reason of it afterwards. The waiver is equivalent, in effect, to an admission that it has been performed and is in a sense evidence of performance. 67 C.J. pp. 313, 314. One may waive his right to object to a particular class of evidence by stipulation. Walker v. Walker, 64 N.H. 55, 5 A. 460. Incompetent evidence admitted without objection must be allowed to have such weight and force as the triers of the facts see fit to accord to it. Farber v. Missouri Pac. Ry. Co., 139 Mo. 272, 40 S.W. 932;McVey v. Barker, 92 Mo.App. 498. A waiver of objection to competency made at one stage of the taking of testimony is a waiver during the progress of the proceedings. Rapalje, Law of Witnesses, p. 300. Where a witness gives his testimony without being sworn, the adverse party by not objecting thereto waives any objection to it. Bowers, Law of Waiver, § 416.

In Trammell v. Mount, 68 Tex. 210, 4 S.W. 377, 379,2 Am.St.Rep. 479, it is said: ‘The appellants allowed the witness to give his testimony without being sworn, and thereby waived any objections to it on that account.’

Where a party has given his assent to a specific act there is good reason for refusing to hear him complain of it. Taylor v. Burnap, 39 Mich. 739.

Where a party to a transaction induces another to act upon the reasonable belief that he has waived, or will waive, certain objections which he is entitled to assert, he will be estopped to insist upon such rights, remedies or objections to the prejudice of the one misled. 21 C.J., p. 1241.

Defendants had a right to insist upon Mrs. Dunning being sworn. It fairly appears that defendants' counsel waived the administration of an oath to Mrs. Dunning as a condition precedent to her testifying. He could at the time of the interview have insisted upon her being sworn. Not having done so, but having consented to her examination by the trial court without the administration of an oath, defendants are now estopped from questioning the admissibility of her testimony. To permit defendants here to repudiate what they acquiesced in in the trial court would not only be prejudicial to plaintiff but work a fraud on the court.

Mrs. Dunning was past 77 years of age, in a feeble condition of health both physically and mentally at the time of the transaction. She was no longer alert. She had no business education, little business experience and limited knowledge. She had been a hard-working farmer's wife, used to working outdoors in addition to running her household. She had inherited from her husband a farm which by reason of its location and the growth of Detroit had increased substantially in value. It had once been sold for $75,000...