Nelson v. Thompson

• Decision Date: 04 September 1907
• Parties: NELSON et al. v. THOMPSON.
• Court: North Dakota Supreme Court

16 N.D. 295

112 N.W. 1058

NELSON et al.

v.THOMPSON.

Supreme Court of North Dakota.

June 12, 1907.

Rehearing Denied Sept. 4, 1907.

Syllabus by the Court.

Opinions of witnesses are in general irrelevant. Certain exceptions to this rule, however, exist. Where, for example, the witness is asked to testify from his observation in talking with a person whether in his opinion that person's mind was clear, and whether he was sane or insane.

The test of whether a person is competent to make a deed is that he should be qualified to do that particular business rationally-not on the one hand, that he should be capable of doing all kinds of business with judgment and discretion, nor, on the other, that he should be wholly deprived of reason, so as to be incapable of doing the most familiar and trifling work. Held, that the evidence in this case shows the grantor in a deed to have been competent to execute the same.

Appeal from District Court, Grand Forks County; Fisk, Judge.

Action by Torber Nelson and others against Julia Thompson. From a judgment for plaintiffs, defendant appeals. Reversed, and judgment ordered for defendant.

Morgan, J., dissenting.Skulason & Skulason and Frank B. Feetham, for appellant. Guy C. H. Corliss and R. M. Carothers, for respondents.

POLLOCK, District Judge.

This action was instituted under the statute to quiet title of the plaintiffs to the N. W. 1/4 of section 17, tp. 149 N., range 49 W., of the Fifth P. M. The action was tried by the court, and an appeal taken under section 7229, Rev. Codes 1905, and is before this court for a trial de novo.

Certain facts are undisputed. It is conceded that one Kittel Olson was, prior to the 19th day of December, 1887, the owner in fee simple of the land in question, and that he died on or about the 2d day of August, 1903, leaving surviving him as his sole heirs at law the five plaintiffs, all of whom, except Thone Salemonson, being children, and Thone Salemonson being at the time of Kittel Olson's death the sole surviving child of Ole Kittelson, a deceased child of Kittel Olson. The title of the plaintiffs to the land is good as against Julia Thompson, unless an alleged deed claimed to have been executed by Kittel Olson in his lifetime to the son Ole Kittelson in his lifetime is sustained. The defendant, Julia Thompson, in her answer, by way of counterclaim, sets up and relies on this deed, which is dated December 19, 1887, and claims that the grantee therein, Ole Kittelson, died in December, 1888, leaving him surviving as his sole heirs at law the plaintiff Thone Salemonson and Charles O. Myron, his two children, and that by succession each inherited from their father an undivided half interest in the real estate in question, and that the defendant, Julia Thompson, succeeded to the one-half interest of Charles O. Myron by virtue of an attachment of his interest in the land by Julia Thompson in a suit brought against the said Myron for damages for breach of promise of marriage, and through the sale of said interest by her under execution upon the judgment rendered in such action, upon which sale she herself purchased said interest, and through the final judgment of the Supreme Court judging void as against said Julia Thompson the transfer by Charles O. Myron of his undivided half interest in said land to his sister, the plaintiff Thone Salemonson, previous to the levy of said attachment. For this succinct statement of the facts, we are indebted to the valuable brief of counsel for the respondents. For the sake of clearness and for those who do not understand the peculiarities of the Scandinavian manner of giving names, we may say that the ancestor was Kittel Olson, his son was named Ole Kittelson, and his son was named Charles O. Myron. The issues were tried before the court without a jury. The court made his findings of fact, which, in substance, were that the alleged deed from Kittel Olson to Ole Kittelson was entirely without consideration; that the said Kittel Olson had no knowledge of what was taking place when he gave said deed, and was wholly without understanding as to the nature of said transaction, and was at said time without sufficient understanding to be conscious of his ownership of the said land or the right to dispose of or control the same, and that the said Ole Kittelson at the time of obtaining said deed was fully aware of the condition of said Kittel Olson, his father. Judgment was therefore rendered in favor of the plaintiffs, on the theory that the deed referred to was void.

This court, after a careful investigation of all the evidence in the case, has arrived at an opposite conclusion, and must hold that the deed is valid. Such being the situation, it will be entirely unnecessary for us to discuss many questions of law which are presented by counsel for appellant, such as those growing out of estoppel, laches, and res adjudicata, claimed by them to have existed because, this deed being valid, then it is a conceded fact and must follow from the whole record that the title of Julia Thompson to an undivided half interest in the land must be quieted in her.

1. Preliminarily to a short discussion of the evidence, the court must pass upon the proper admission of certain of the testimony which was offered by counsel for respondents, and as often objected to by counsel for appellant. An illustration of the questions objected to would be the following, taken from the direct examination by Mr. Corliss, of Tora Solum, found at folio 219 of the abstract: “Q. From what you saw of your father's conduct after he had this trouble, and from what you observed about his absence of speech and answering ‘Ya, ya’ and ‘Nay, nay,’ senselessly at times, and from all that you saw of him at that time, his conduct and everything else, what is your opinion-I do not ask you what you know, but what is your opinion as to whether your father had any idea of business at all?” Mr. Skulason objected to this line of questioning upon the grounds that it was not competent, was opinion evidence, irrelevant, immaterial, and leading. “There is no more familiar principle in the law of evidence than that opinions of witnesses are in general irrelevant, even when witnesses are limited in their statements to facts within their own knowledge. Their bias, ignorance, and disregard of the truth are obstacles which too often hinder in the investigation of the truth; but the general rule rejecting evidence as to the opinions of witnesses is subject to very important exceptions. It often happens that it is impossible for a witness to detail all the pertinent facts in such a manner as to enable a jury to form a conclusion without the opinion of the witness. Indeed, the witness might not be able to separate the facts and indications from which he has formed a conclusion from the conclusion itself. Accordingly, a witness may testify to his own state of health. This is not a matter of opinion in the sense that it calls for expert testimony. So ordinary witnesses have been allowed to express opinions as to whether another person seemed to be suffering pain, or whether he seemed nervous or sad, or in pain or good health, or whether a person's mind seemed to be clear or had failed.” Jones on Evidence, pars. 361, 362, and cases cited. In the case of the People v. Sanford, 43 Cal. 33, the court, referring to this class of testimony, says: “It approaches knowledge and is knowledge, so far as the imperfection of human nature will permit knowledge of those things to be acquired, and the result thus acquired should be communicated to the jury because they have not had the opportunities of personal observation, and in no other way can they effectually have the benefit of the knowledge gained by the observation of others.” It would therefore appear that the objection to the introduction of such opinion testimony should be overruled.

2. The question is naturally suggested by the record in this case, in view of the provisions of section 4018 of the Revised Codes of 1905, which declares that a person entirely without understanding has no power to make a contract of any kind, just what those provisions mean when applied to facts like those in the case at bar. We are of the opinion that the rule as laid down in Jackson v. King, 4 Cow. (N. Y.) 207, 15 Am. Dec. 354, is the correct one, viz., that, “upon the question of incapacity to render the deed invalid, they must be satisfied that the grantor was not in a situation to transact that particular business rationally-not, on the one hand, that he should be capable of doing all kinds of business with judgment and discretion, nor, on the other that he should be wholly deprived of reason, so as to be incapable of doing the most familiar and trifling work, that, if the mind and memory were in such a situation at the time of executing the deed as to render him wholly incompetent to judge...