Newman v. Hall

• Decision Date: 24 March 1939
• Citation: 278 Ky. 88
• Parties: Newman v. Hall et al. Commonwealth, for Use and Benefit of Newman, et al. v. Hall's Adm'r et al. Hall's Ex'r et al. v. Hall et al.
• Court: United States State Supreme Court — District of Kentucky

Page 88

278 Ky. 88

Newman v. Hall et al.

Commonwealth, for Use and Benefit of Newman, et al. v. Hall's Adm'r et al.

Hall's Ex'r et al. v. Hall et al.

Court of Appeals of Kentucky.

March 24, 1939.

1. Deeds. — One possessed of mentality sufficient to comprehend what he is doing and to understand the nature of his acts, and to appreciate and weigh their consequences and effect, has sufficient capacity to make a deed.

2. Contracts. — Ordinarily, one alleging fraud, undue influence, etc., has the burden of establishing them.

3. Deeds. — Where the relation of father and son exists between grantor and grantee or donor and donee, and father is old and infirm, and, because of mental and physical infirmities, is in the custody and practically under the control of the son, while the son is young, alert, healthy, and vigorous, burden shifts to son to show that the father had mental capacity sufficient to know that he was making a conveyance or gift of his property, and to appreciate the consequences and effect of his acts.

4. Deeds. — In consolidated actions to cancel deed by which aged man gave his entire landed estate to his son who lived with him, to the exclusion of his daughter and grandchildren for whom he had great affection, son's evidence was insufficient to meet burden of showing that his father had mental capacity sufficient to know that he was making the deeds and to appreciate the consequence and effect of the deeds.

5. Deeds. — Aged man's daughter was not estopped to maintain action to cancel deed by which aged man gave his entire landed estate to his son who lived with him, to the exclusion of the daughter and grandchildren, because of the fact that she signed disclaimers in prior suits by others against the son, where, according to daughter's evidence, the son had obtained the daughter's signature to the papers by representing that the purpose was to keep her from being required to attend court as a witness and that she would receive her share of the estate.

6. Judgment. — Those who were parties to action and did not set up or assert any claim of right or title to any of the land in controversy, or to rents and royalties derived from leases on the land, were bound by the judgment.

Appeal from Knott Circuit Court.

H.C. FAULKNER and FAULKNER & FAULKNER, attorneys for appellant Newman; MURRAY L. BROWN and BERT T. COMBS for appellants, Lena Hall's Ex'r and others.

H.H. SMITH, D.G. BOLEYN and COMBS & COMBS for appellees.

Before John W. Caudill, Judge.

OPINION OF THE COURT BY CREAL, COMMISSIONER.

Reversing, etc.

Richard Hall, a citizen and resident of Knott County, Kentucky, died intestate on November 1, 1929. The record is not clear as to his age but shows with reasonable certainty that he was nearing 80 at the time of his death. He was survived by one son, David Hall, one daughter, Merica Newman, and 4 grandchildren, Diamond Waddle, Lulu Hall, Clara Johnson and Nancy Caudill, children of his deceased daughter, Frankie Waddle, as his only heirs at law.

On November 11, 1929, David Hall lodged and caused to be recorded in the county court clerk's office in Knott county what purported to be two deeds from Richard Hall to him for 2 tracts of land comprising the entire landed estate of the grantor. While the deeds do not so show the evidence indicates that the combined acreage of the tracts conveyed is from 2,500 to 3,000 acres. David Hall was appointed and duly qualified as administrator of his father's estate. On November 5, 1930, Merica Newman instituted an action in equity against David Hall making Diamond Waddle and the other children of her deceased sister, Frankie Waddle, and Ernest Hall, husband of one of the daughters of Frankie Waddle, parties defendant, seeking to have the two deeds set aside, cancelled, and held for nought, and later, by amended petitions, made George Hall, Lawrence Hall and others as will be hereinafter referred to, parties defendant.

As grounds for setting aside the deeds she alleged in her petitions as amended in substance (1) that the deeds were never actually signed or acknowledged by Richard Hall but that pursuant to and in furtherance of a conspiracy entered into between David Hall, Lawrence Hall and George Hall, the name of Richard Hall was affixed to the deeds after his death and the purported certificates of acknowledgment made; (2) that if the deeds were made at the direction of Richard Hall in his lifetime they were procured by fraud and undue influence of David Hall aided and abetted by his co-conspirators, George and Lawrence Hall, at a time when decedent was old and ill and so weakened and enfeebled in mind and body as not to know the significance or effects of his acts; (3) that if the deeds were actually made during the life of Richard Hall and at his direction, they were void because Lawrence Hall who purported to take the acknowledgment thereto was not at the time deputy county court clerk of Knott county or authorized to take such acknowledgment; that he had theretofore been deputy county court clerk of that county but later and before the acknowledgment was claimed to have been taken he had been appointed and had qualified as deputy sheriff of the county thereby vacating his office as deputy clerk. She further alleged in effect that the deeds were never signed or acknowledged by Richard Hall and that the certificates of acknowledgment were false and untrue; that after the death of Richard Hall, Diamond Waddle and his sisters instituted actions in the Knott circuit court against David Hall in which actions she was made a party defendant, the purpose of the actions being to have the two deeds above referred to set aside. She alleged that she was not before the court in those actions by summons or otherwise but that her brother through fraud and deceit procured her to file an answer and disclaimers to the effect that she was not an interested party and did not claim any land described in the petition and that she disclaimed all interest whatsoever in any and all of the land described therein and asked that she be dismissed from the action as party defendant; that she had every reason to believe that the deeds set out and described in the petition were made, signed, executed and delivered by her father, Richard Hall, of his own free will and at a time when he was fully capable of making, signing, acknowledging and delivering same. She further alleged that no order or judgment was rendered in the consolidated actions with respect to her interests, but orders were entered in each of the actions filing the two papers which her brother had procured her to sign which purported to be her answer and disclaimer although no judgment or order was entered dismissing the action as to her but only a judgment entered dismissing the cases on motion of the plaintiffs as settled between the parties plaintiff and the defendant, David Hall. She set out at length the final order entered in the consolidated actions which recited in substance that David Hall and his wife had conveyed to plaintiffs a portion of the land in controversy in full settlement of the litigation and settlement in full of any claims plaintiffs had or might have in either the personal or real estate of Richard Hall, deceased, and that the consolidated cases be dismissed settled.

She asked that if David Hall contended or that if it should be adjudged or held that because of that litigation or any steps or orders taken therein her interest in the land was affected, that the paragraph of her petition with reference thereto be treated as her petition for a new trial in those actions and that the judgment, orders, etc., insofar as they affected her interests be set aside and held for nought as to her and that she be allowed to withdraw the two purported answers and left free to prosecute her claims to the lands in controversy as set out in the other paragraphs of the petition.

At the same time she filed another action against David Hall, as administrator of Richard Hall, the sureties on his bond, as such, and other parties, alleging that large sums of money and other personal property had come into his hands as administrator and for which he had failed and refused to account; and further alleged in her petition as amended in substance that David Hall was claiming that decedent had given him money and other personal property; that such gifts were in fact not made or if they were made, they were procured to be made through fraud, etc., on the part of David Hall and at a time when her father was so weakened, mentally and physically, that he did not know or appreciate the purport, nature and effect of his acts.

By answer, counterclaim, etc., the defendant, David Hall, denied the material allegations of the petition and set up the proceedings, the pleadings of the plaintiff, the judgment, etc., in the consolidated action of Diamond Waddle and others against David Hall in estoppel and in bar to plaintiff's right of recovery and further alleged in substance that no personal property came into his hands as administrator except two or three notes for small sums, not sufficient to pay burial expenses of decedent.

By amended petitions plaintiff made the Kentucky West Virginia Gas Co., and Lena Hall, mother of defendants Lawrence Hall and Ernest Hall and widow of Joe Hall, deceased brother of Richard Hall, parties defendant alleging that the former had or was claiming an oil and gas lease on some of the lands in controversy and was paying royalties from oil and gas wells to David Hall and Lena Hall but that the payments were in fact being made for the benefit of David Hall and he was receiving all of same and she asked that the company and defendants be required to account to her for all royalties paid to the extent of her interests in the land.

The Kentucky West Virginia Gas Company filed answer, counter-claim and cross-petition in which as amended it alleged in substance that it was the owner of an oil and...