Redmon v. Borah

• Decision Date: 14 May 1943
• Docket Number: No. 26950.,26950.
• Citation: 48 N.E.2d 355,382 Ill. 610
• Parties: REDMON v. BORAH et al.
• Court: Illinois Supreme Court

382 Ill. 610

48 N.E.2d 355

REDMON

v.BORAH et al.

No. 26950.

Supreme Court of Illinois.

March 16, 1943.

Rehearing Denied May 14, 1943.

Action by Effie Redmon, conservatrix of the estates of Charles Z. King and his wife, incompetents, against O. C. Borah and others, to set aside a mineral deed from the incompetents to defendant Borah or require an accounting. From a decree dismissing the complaint, plaintiff appeals.

Affirmed.Appeal from Circuit Court, Jasper County; James G. Burnside, judge.

Harry I. Hannah and Thomas R. Figenbaum, both of Mattoon, for appellant.

Fred W. Gee, of Lawrenceville, and Homer Kasserman, of Newton, for appellees.

MURPHY, Justice.

After a hearing of evidence, the circuit court of Jasper county dismissed plaintiff-appellant's complaint for want of equity. The purpose of the action was to set aside a mineral deed executed by Charles Z. King and Sarah King, his wife, to defendant O. C. Borah, on the grounds of mental incapacity of the grantors, fraud in procuring the signatures and that the defendants unlawfully conspired to obtain the title. As alternative relief plaintiff prayed for an accounting. A freehold being involved the case comes direct to this court.

The evidence shows that on April 21, 1936, Charles Z. King owned the 130 acres described in the mineral deed and on that date he and his wife executed an oil and gas lease, reserving as royalty the usual one-eighth part. The Pure Oil Company is the present holder of that lease, is operating under it and its validity is not involved in this case. The royalty proceeds are held pending the determination of the case.

On March 26, 1937, King and wife executed the deed in question, conveying to Borah an undivided one-half interest in grantors' mineral rights in said land. Borah paid the Kings $1000 in cash for the deed and covenanted to pay $650 more, if and when oil should be produced in paying quantities. Oil was not produced from this land until March 1940. This suit was started September 15, 1941. Prior to the beginning of the suit, Borah made a tender of $650 additional consideration which was refused. Plaintiff tendered back the $1000 first paid and this Borah refused.

Other pertinent dates and undisputed facts are that on April 5, 1937, Charles Z. King was adjudged an incompetent person and Effie Redmon, a daughter, was appointed conservatrix of his estate. He died on November 12, 1937, leaving a will, executed in 1930, devising the real estate in question to his wife, Sarah King, which will was duly admitted to probate. On August 23, 1941, Sarah King was adjudged an incompetent person and Effie Redmon was appointed conservator of her estate. During the pendency of this appeal, Sarah King died and the representative of her estate has been substituted and the beneficiaries made parties.

The complaint charged that Charles Z. King and Sarah King were mentally incapable of executing the mineral deed, that it was obtained through fraud and misrepresentation pursuant to a fraudulent and unlawful conspiracy entered into by the defendants. It was also alleged that the consideration was inadequate. Defendants' answer traversed all of such allegations.

The evidence was heard before the chancellor and he found that the Kings were mentally capable of making the mineral deed, that there was no fraud or misrepresentation and that the consideration paid and to be paid was fair and adequate. A decree was entered and this appeal followed.

At the time the deed in question was executed, Charles Z. King was eighty-three and Sarah King was seventy-nine years old. In earlier life they resided on and farmed the land involved in the deed. It was located about six miles from the village of West Liberty in Jasper county. According to all the evidence Charles Z. King was considered to be a successful farmer and possessed of average business ability. About 1922 he retired from active farming and took up his residence in West Liberty where he operated a hardware store. He owned a house and other property in West Liberty. He sold the hardware business in 1927 and was never again actively engaged in any business.

All parties agree that prior to 1930 Charles Z. King was an intelligent, active and alert businessman, who took an active interest in civic and church affairs and was fond of visiting and friendly conversation. In that year he suffered a stroke which affected him both physically and mentally. The evidence on the issue of his mental capacity at and for some time prior to the execution of the deed is conflicting.

Twenty-one witnesses testified on this point for plaintiff and stated that in their opinions King was not competent to transact ordinary business on March 26, 1937. The testimony of these witnesses is entitled to considerable weight for most of them were friends of long acquaintance, neighbors and tradespeople, who had frequent opportunity to observe King during the last five or six years of his life. They each related incidents of their own observation bearing on his mental competency and ability to transact business. Many of the incidents are trivial and inconclusive, but they have a common theme. They all tend to prove that after the stroke he became moody, irritable, seclusive and childish, and that he did not talk very much, that he appeared dazed, that his speech was slow, thick and incoherent, and he walked with a shuffling, halting gait. He was very forgetful, seldom could remember the articles such as groceries he was to buy and did not seem to know much about the prices; at times he wore his shoes on the wrong foot, and could not recognize people he knew. Some witnesses testified he inquired about the location of the bank which had been closed for over a year. Others testified to having seen him urinate in places where he was exposed to public view. A witness who purchased a lot and garage building from him prior to 1930 testified that after 1931 he came to the garage frequently and would turn the shop radio on and appear to be listening when there was nothing but static, that at times he turned on the power machinery and when cautioned not to do it again he would become offended and had to be watched like a child. This witness also related an incident when King falsely accused certain persons, including members of his own family, of turning him in to the game warden. A tenant on King's farm testified that he insisted on selling him his share of some beans for less than they were worth.

Six witnesses testified for defendants as to the mental capacity of Charles King and stated that in their opinions he was mentally capable of transacting ordinary business on March 26, 1937. One of the witnesses was a granddaughter of Charles and Sarah King, who frequently visited in the King home and was there on a visit the Sunday preceding March 26, 1937. She stated that her grandparents had talked about selling the royalty ever since they leased the ground to the Pure Oil Company and that on the Sunday she was there, the members of the family, including her mother, Nora Cunningham, her aunt, Effie Redmon, and her grandparents, all talked about selling royalty; that her grandparents had several offers from royalty buyers but none had offered more than $500 for one half of the royalty. She testified that her grandparents were both mentally capable of transacting ordinary business on that day. The husband of this witness was present and testified that Charles and Sarah King acted as normal people of their age and that in his opinion they were both capable of transacting ordinary business on March 26, 1937.

Nora Cunningham, a daughter of Charles and Sarah King, testified that during 1936 and 1937 she visited her parents every week and that in her opinion they were both capable of transacting ordinary business on March 26, 1937. This witness testified that she was in the King home on the Sunday prior to March 26, 1937, and that on that and other occasions she had discussed selling royalty with her father and mother; that it was a common topic of conversation at that time; that on the afternoon of March 26, 1937, the defendant, O. C. Borah, accompanied by Charles Z. King and Sarah King came to her home and Borah told her that her father had sold the royalty and asked her to go with them to Newton. Mrs. Cunningham further testified that she went with them; that they drove to the home of her sister, Effie Redmon, the plaintiff-conservatrix, at Newton, and they all went to the office of Ben Lowe, a notary public. She also testified Ben Lowe then prepared the mineral deed in question, read it over to them, that her father and mother signed it at that time and that she and Mrs. Redmon signed as witnesses. Borah delivered his check for $1000 to her father and he turned it over to Effie Redmon for deposit. The witness further testified that they were all well pleased with the deal.

Arthur Cunningham, the former husband of Nora Cunningham, testified that prior to March 26, 1937, he saw Charles King once a week or more and that Charles King visited in the Cunningham home for a month in November and December of 1936. During this visit King talked about selling some royalty and said he thought he should sell some because the money would do him more good at that time than later. In his opinion Charles King was capable of transacting ordinary business on March 26, 1937.

The evidence as to the mental capacity of Sarah King is also conflicting. Eight of plaintiff's witnesses testified that in their opinions she was mentally incapable of transacting ordinary business in March of 1937. These witnesses were members of the family and close friends of long acquaintance who had a good opportunity to observe her mental and physical condition at that time. They testified that she was a clean and efficient housekeeper, that she was uneducated, that she could not read or write except to sign her name but that she was intelligent, except for book knowledge....