Physio-Med. Coll. of Indiana v. Wilkinson

• Decision Date: 23 November 1886
• Parties: Physio-Medical College of Indiana and others v. Wilkinson and others.
• Court: Indiana Supreme Court

108 Ind. 314

9 N.E. 167

Physio-Medical College of Indiana and others

v.Wilkinson and others.

Supreme Court of Indiana.

November 23, 1886.

Appeal from circuit court, Hamilton county.Wallace & Young, Kane & Davis, and Duncan, Smith & Wilson, for appellants.

Neither paragraph of appellees' complaint is good. The allegation that they are the “heirs” of Margaret Wilkinson, deceased, is a mere conclusion of law, and is not sufficient. 1 Chit. Pl. (16th Amer. Ed.) 382. The first paragraph does not allege that Margaret Wilkinson was ever adjudged to be of unsound mind. Her acts were therefore merely voidable, and it should have been further alleged in this paragraph that she did not afterwards become of sound mind, and confirm the execution of the deed made while of unsound mind. Hardenbrook v. Sherwood, 72 Ind. 403.

The second paragraph of the complaint contains no sufficient allegation of unsound mind, but apparently proceeds on the theory that the deed was fraudulently obtained by undue influence. It is also insufficient upon this theory, for it does not show that any improper means were used to influence her, nor that any misrepresentations were made except as to the character and legal effect of the deed. Clodfelter v. Hulett, 72 Ind. 137;Fry v. Day, 97 Ind. 348;Burt v. Bowles, 69 Ind. 1;Smither v. Calvert, 44 Ind. 242.

The evidence is insufficient to sustain the verdict. The opinions expressed by witnesses as to the unsoundness of mind of Margaret Wilkinson were shown, on cross-examination, to be unfounded, and are therefore entitled to no consideration whatever. The court erred in permitting evidence of the contents of the notice of disaffirmance, claimed to have been served on the appellants, without proof of loss of the original. Foot v. Bentley, 44 N. Y. 166;Anderson Bridge Co. v. Applegate, 13 Ind. 339;State v. Lockwood, 5 Blackf. 144; 1 Greenl. Ev. § 560.

D. Moss, J. A. Roberts, and R. R. Stephenson, for appellees.

The averment that appellees are “heirs” is no more a legal conclusion than would be the averment that they are “children” or “nephews.” The word “heirs” has a definite and specific meaning. Peacock v. Albin, 39 Ind. 25;Thomas v. Thomas, 18 Ind. 9; 1 Whart. Ev. § 513. If the complaint was uncertain in not showing how they became heirs, appellants should have moved to make it more specific. The case of Hardenbrook v. Sherwood, 72 Ind. 403, does not support appellant's contention that the complaint is bad for not alleging that Margaret Wilkinson was not restored to sound mind, and did not ratify the deed. The complaint is sufficient without such averment. 1 Greenl. Ev. § 41; Crouse v. Holman, 19 Ind. 30;Kenworthy v. Williams, 5 Ind. 375. The evidence sustains the verdict. No error was committed in the admission of evidence, (see 1 Greenl. Ev. § 561; Cressler v. Williams, 80 Ind. 366;) and the objections made thereto are void for uncertainty, (Harvey v. Huston; 94 Ind. 527.)

Mitchell, J.

The complaint in this case is in two paragraphs. The facts found by the jury in their special verdict show that the verdict and judgment rest exclusively upon the first paragraph. This is, to all intents and purposes, conceded in the briefs. The burden of the appellants' argument is directed against the complaint, which is questioned here by assigning as error “that the complaint does not state sufficient facts to constitute a cause of action.” We will consider only the first paragraph, as the appellees concede that there are no facts found by the jury which would sustain a judgment on the second. and under the rule, if there is one good paragraph, the assignment is not well made.

The material facts which appear in the first paragraph of the complaint are that Margaret Wilkinson died intestate on the third day of May, 1877, leaving the plaintiffs below as her only heirs at law. On the eleventh day of April, 1874, the intestate was the owner in fee-simple of 320 acres of land, in Marion county, of the alleged value of $14,000. On the date above mentioned she executed a deed conveying the land so owned by her to the Physio-medical College of Indiana, a corporation duly organized pursuant to law. The complaint alleges that, at the time she made the deed in question, Margaret Wilkinson was 80 years old; “that she was greatly enfeebled and debilitated, both in mind and body, so much so that she was of unsound mind, and was not of sound and disposing memory,” and was incapable of comprehending the nature of a contract or deed. It was also alleged that the deed was made without consideration; that the appellees had given notice to the appellants, before the commencement of the suit, of their disaffirmance of the conveyance on account of the mental unsoundness of the grantor; and that they had demanded possession of the land, which had been refused. They prayed judgment for the cancellation of the deed, and the quieting of their title. The consideration stated in the deed, a copy of which was filed with the complaint, is “love and affection for the college.” The deed contains this further recital, viz.: “Should a worthy young man or woman apply for admission, and not have the means to pay his or her tuition fee, he or she shall have said tuition fee gratis. It is my wish, should said students ever be able to pay said fee thereafter, they will refund said fees to the college, except the following: Silas M. White and Hannah M. White shall not pay for tuition.”

The first objection urged to the complaint is that it does not appear, from any facts therein specifically stated, that the plaintiffs below had such an interest in the property in controversy as entitled them to maintain an action to cancel the deed. The allegation in that respect is as follows: “That on the third day of May, 1877, Margaret Wilkinson died intestate; that the plaintiffs are the heirs, and only heirs, of said Margaret Wilkinson, deceased.” The averment that the plaintiffs are the heirs of the intestate, it is said, is but the statement of a conclusion of law. We do not concur in this view. It was equivalent to a statement of the fact that the appellees stood in such relation of kinship to Margaret Wilkinson as that, at her death, the law of descents cast her estate upon them. If the appellant had deemed it important that the degree of consangunity or affinity relatively occupied by the deceased and the plaintiffs should appear more in detail, a motion to make the complaint more specific might, with propriety, have been entertained.

The objection that the complaint does not sufficiently allege that Margaret Wilkinson was of unsound mind at the time she made the deed in question is without substantial merit.

It is next contended that the complaint is fatally defective,-and this is the point chiefly relied on,-because it contains no averment that Margaret Wilkinson had been adjudged a person of unsound mind before the deed in question was made, and because it does not directly and distinctly aver that she was not restored to reason, and had not thereafter ratified the deed before her death. The argument is that a deed made by a person of unsound mind, who is not under guardianship, and whose mental unsoundness has not been judicially ascertained, is, at most, only voidable. Not being void, it is capableof ratification in case the grantor is again restored to reason. Hence it is said, since it does not appear by “direct and distinct” averment in the complaint that Margaret Wilkinson had not recovered her reason between the eleventh day of April, 1874, the date of the deed, and the third day of May, 1877, the date of her death, and had not meanwhile ratified the deed sought to be canceled, the case is open to the presumption that such restoration and ratification may have occurred. This conclusion is said to follow from the ruling in Hardenbrook v. Sherwood, 72 Ind. 403.

Conceding the premises above stated, the conclusion predicated thereon is nevertheless irrelevant, and, in our opinion, unsupported by the authority relied on. That the contract or deed of a person of unsound mind, whose mental incapacity has not been judicially declared, is only voidable, is an indisputable proposition; and that a deed or contract made under such circumstances may be affirmed after mental restoration is equally beyond judicial controversy; but that a person 80 years old, so physically and mentally prostrated as to be of unsound mind, and incapable of comprehending the nature of a contract, will be presumed from the lapse of time to have recovered her reason, is not maintainable either in reason or upon authority.

Hardenbrook v. Sherwood was a case in which one Walburn, in November, 1875, had become replevin bail for the stay of execution on certain judgments. About 18 months thereafter he commenced an action to obtain relief from the obligation thus assumed, on the ground that, at the time of becoming bail, he was of unsound mind. Subsequent to the commencement of the action Sherwood was appointed guardian, and the action was prosecuted in the name of the latter upon the same complaint filed by Walburn. The opinion lays stress upon the fact that the action to rescind then before the court had been commenced by the person who was alleged to have been of unsound mind at the time the contracts sought to be canceled were made. In the course of the opinion the court said: “The original complaint in this cause was filed by and in the name...