Raymond v. Wathen

• Decision Date: 29 October 1895
• Docket Number: 17,530
• Citation: 41 N.E. 815,142 Ind. 367
• Parties: Raymond et al. v. Wathen et al
• Court: Indiana Supreme Court

41 N.E. 815

142 Ind. 367

Raymond et al. v. Wathen et al

No. 17,530

Supreme Court of Indiana

October 29, 1895

From the Daviess Circuit Court.

The judgment is affirmed.

H Burnes and J. S. Pritchett, for appellants.

W. R Gardner, C. G. Gardner and W. R. Gardner, Jr., for appellees.

OPINION

Jordan, J.

Appellees as the children and heirs of Eberhart H. Raymond, commenced this action to avoid and set aside a certain deed executed by said Eberhart H. to appellant Sarah B. Raymond, by which he conveyed to her real estate and personal property of the alleged value of five thousand dollars, in consideration of one dollar, and love and affection. The validity of the deed in question is assailed by the complaint upon two grounds to-wit:

1. Mental incapacity of the grantor.

2. Undue influence in procuring its execution.

The complaint, among other things, alleges, that the deed was executed by the said Eberhart H. Raymond, on the 23rd day of April, 1894, and that he died on May 28, 1894, and at the date of its execution he was of unsound mind. That at said date he was eighty-two years of age, and at and prior thereto he was enfeebled by age, and physical and mental decrepitude.

Further facts are alleged, exposing the invalidity of the deed upon the ground of undue influence exercised over the grantor at the time of the conveyance. Appellants each separately, but unsuccessfully, demurred to the complaint as an entirety upon the ground of insufficiency of facts. Upon the issues joined between the parties by an answer in denial, a trial resulted in a jury returning a general verdict for the appellees, and also special findings upon three interrogatories submitted to them, to the effect that the deed in controversy was procured to be executed by the undue influence exercised over the grantor by all of the appellants, and at the time he executed the same he did not have sufficient mind and memory to understand the ordinary affairs of life, and have a general knowledge of his property. Over the separate motions of appellants for a new trial, and in arrest of judgment the court rendered its judgment setting aside the deed.

The first error urged upon us for consideration by appellants' learned counsel, is that the complaint was not sufficient in facts to withstand a demurrer, and that, therefore, the court erred in overruling the same. As we have seen, the invalidity of the deed was based upon two grounds set forth in a single paragraph, and treated as such by the parties, as there was no motion to require plaintiffs to further paragraph their complaint. Therefore, it is evident, we think, that each ground, or specification, must be viewed or treated in the character of a separate paragraph, and where the demurrer does not challenge each ground specifically, but all as an entirety, in the words, "that the complaint does not state facts sufficient, etc.," then, and in that event, if any one of the grounds set forth is sufficiently stated to constitute a cause of action, there will be no available error in overruling the demurrer, upon the same principle that a joint demurrer to a pleading of several paragraphs of which one, at least, is good must be overruled. Mustard v. Hoppess, 69 Ind. 324; Hilton v. Mason, 92 Ind. 157; Hill v. Probst, 120 Ind. 528, 22 N.E. 664; Jones v. Cullen, 142 Ind. 335, 40 N.E. 124; Ohio, etc., R. W. Co. v. McCartney, 121 Ind. 385, 23 N.E. 258.

We think that the complaint, as formulated and treated by the parties herein, comes within the rule laid down and approved by the above decisions.

It is insisted that the pleading does not state a cause of action upon the ground of insanity for two reasons:

1st. That there is an absence of facts showing that the grantor "continued to be of unsound mind until his death, or that he disaffirmed the deed after he became of sound mind."

2nd. That it does not allege that the grantor, or the appellees as his heirs, had disaffirmed the deed prior to the commencement of this action.

In support of their first objection, the appellants cite Hardenbrook v. Sherwood, 72 Ind. 403, and Louisville, etc., R. W. Co. v. Herr, 135 Ind. 591, 35 N.E. 556. Neither of these cases, we think, is applicable to the case at bar upon the first proposition, in view of the facts as they appear upon the face of the complaint.

In the case first cited more than eighteen months had elapsed after the insane ward had executed the replevin bond (he not being under guardianship at the time of its execution) before the filing of the complaint by his guardian, and as it did not directly or inferentially appear that the mental disability therein alleged continued, etc., this court held it insufficient. By the pleading now under consideration, it is shown that the grantor was eighty-two years of age, enfeebled by age, and physical and mental decrepitude, and that his death occurred in about a month after the execution of the deed.

The mental condition of the grantor, as it is apparent from the facts in the complaint, was accompanied with, and probably due to the infirmities of old age and decrepitude, and the inference or presumption under these facts must follow that his mental condition would not improve in the short limit of his life subsequent to the execution of the conveyance in controversy.

The presumption as to the continuance of insanity when once shown is one of fact, varying with the particular case. 2 Wharton Ev., section 1253.

The rule, however, does not apply to occasional or intermittent insanity, but it does in all cases of whatever nature, wherever the insanity is apparently confirmed.

In Physio-Medical College v. Wilkinson, 108 Ind. 314, 9 N.E. 167, in passing upon a question similar to the one here involved, on page 319, it was said:

"The complaint before us presents a case of mental unsoundness, accompanied with, and probably resulting from the infirmities and decrepitude of old age. There is no presumption either of law or fact that passing years give release from such impairment of reason."

We think, the complaint not subject to appellants' first objection.

As the complaint was originally drafted there was an omission of the technical averment that the grantor or the appellees, as his heirs, prior to the commencement of the action, had disaffirmed the deed. After the motion for a new trial was overruled, and pending the motion in arrest of judgment appellees obtained leave of court over appellants' objection, and amended the pleading in this respect, by inserting the necessary averment in order, as appellees contend, to conform it to the proof. With the fact of disaffirmance appearing in the complaint by virtue of the amendment, it was cured of the infirmity urged against it, and no longer open to appellants' objections, and consequently no available error resulted from overruling the demurrer to the alleged cause of action based upon the ground of the grantor's insanity. The complaint being sufficient upon this basis, and the demurrer having assailed it as an entirety, the action of the court in overruling it was proper, and, therefore, in order to uphold the pleading, we are not...