Raymond v. Wathen

• Court: Indiana Supreme Court
• Writing for the Court: JORDAN
• Citation: Raymond v. Wathen, 142 Ind. 367, 41 N.E. 815 (Ind. 1895)
• Decision Date: 29 October 1895
• Parties: RAYMOND et al. v. WATHEN et al.

142 Ind. 367

41 N.E. 815

RAYMOND et al.

v.WATHEN et al.

Supreme Court of Indiana.

Oct. 29, 1895.

Appeal from circuit court, Daviess county; D. J. Hefron, Judge.

Action by Sarah B. Raymond and others against Mary J. Wathen and others. There was a judgment for plaintiffs, and defendants appeal. Affirmed.

H. Burns and J. S. Pritchett, for appellants. Gardiner & Gardiner, for appellees.

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 $5,000 in consideration of $1 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 23d 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 82 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 (at last term) 40 N. E. 124;Railway 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: (1) 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”; (2) 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 Railway 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 18 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 82 years of age, enfeebled by age and physical and mental decrepitude, and that his death occurred in about one 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 and decrepitude of old age; 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 Whart. Ev. § 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. Medical College v. Wilkinson, 108 Ind. 314, 9 N. E. 167. In passing upon a question similar to the one here involved, in the case last cited, this court, on page 319 of the opinion, 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' objections, and amended the pleading in this respect, by inserting the necessary averment, in order, as appellees contend, to...