Schindler v. Parzoo

• Decision Date: 27 October 1908
• Parties: SCHINDLER v. PARZOO.
• Court: Oregon Supreme Court

97 P. 755

52 Or. 452

SCHINDLER v. PARZOO.

Supreme Court of Oregon

October 27, 1908

Appeal from Circuit Court, Douglas County; J.W. Hamilton, Judge.

Action by Elizabeth Schindler, by Ira South, guardian, against Adeline Parzoo. From a decree for plaintiff, defendant appeals. Affirmed.

This suit is prosecuted in the name of Elizabeth Schindler, an alleged incompetent person, by Ira South, her guardian against Adeline Parzoo, to adjudicate an adverse claim to certain real property consisting of 4 1/2 acres, situate in the suburbs of the city of Roseburg, alleged to belong to plaintiff and to be in her possession, and to be of the value of $1,500. It is alleged that Ira South, who is plaintiff's son, on June 18, 1906, upon his written petition and after due notice and hearing, was duly appointed by the county court of Douglas county guardian of the person and estate of plaintiff, who was adjudged to be incapable of taking care of herself and not competent to manage her estate, and that he subsequently qualified as such guardian. The asserted adverse claim is alleged to arise from, and to be based upon, a recorded deed purporting to have been executed by plaintiff on January 8, 1906, and to convey to defendant the fee-simple title to said property, but that at the execution thereof, and for a long time prior thereto plaintiff was of unsound mind and incapable of transacting her own business; that she was illiterate, not being able to read or write, was of advanced age, being more than 67 years old, and sick in bed; that the defendant was acting as plaintiff's nurse, and, taking advantage of her imbecility of mind and weakened and helpless condition fraudulently induced and persuaded her to execute the deed. For this reason the deed is alleged to be void, and the prayer is that it be canceled of record. After the overruling of a general demurrer to the complaint, defendant answered denying all the material averments of the complaint, excepting the alleged adjudication of plaintiff to be an incompetent person, the appointment of her son as guardian and his qualification, the execution of the deed, and that, by virtue thereof, she claims the ownership of the property described, which is denied to be worth more than $800. As an affirmative defense, it is alleged that the deed was made by plaintiff freely and voluntarily for a valuable consideration. These averments of the answer were denied by the reply, and particularly that the deed was made for a valuable or any consideration. During the progress of the trial, plaintiff was permitted to amend her complaint by adding a charge that on January 8, 1906, she was very sick, feeble, and not expected to live, and that defendant, a short time before the execution of the deed, administered to her morphine and other poisonous drugs with the intent and for the purpose of causing her to be in a stupor, and which had that effect, and caused her to be in an unconscious condition for several hours thereafter. The court found that plaintiff was an aged and ignorant person, feeble in mind and body, and suffering from a severe and dangerous illness from which she had not recovered, and that at the time of the execution of the deed her mind was weak and feeble to the extent that she was incapable of contracting, and was persuaded to make said conveyance by the presence and influence of defendant. A decree was entered setting aside the deed, from which defendant appeals.

J.C. Fullerton, for appellant.

John T. Long and Frank G. Micelli, for respondent.

SLATER C. (after stating the facts as above).

The only objection to the complaint urged by counsel for defendant on her demurrer is that there is no averment that the deed was made without consideration, or that the consideration was inadequate, and it is contended that, for that reason, the complaint is insufficient. If, to avoid her deed, plaintiff relied solely upon either the want of a consideration or upon actual or constructive fraud in the procurement of its execution, it would undoubtedly be essential to a good cause of action to allege, in the first instance, that there was no consideration, or, in the second instance, of what the consideration consisted, and an offer to return it; that is, offer to put the other party in statu quo. State v. Blize, 37 Or. 404, 61 P. 735; Crossen v. Murphy, 31 Or. 114, 49 P. 858. But in this case plaintiff's chief reliance to avoid the contract is upon her mental incompetency at the time of the execution of the deed; and, if it be found to exist, it is not essential to state what may have been the consideration. The rule has been stated by Mr. Justice Moore in Crossen v. Murphy to be that the obligation to return or offer to return whatever has been received under a contract by one who is seeking to rescind it rests upon one "who is mentally responsible," thereby impliedly conceding, at least, that one who was not mentally responsible at the making of a contract is not under such obligation. In Gibson v. Soper, 6 Gray (Mass.) 279, 66 Am.Dec. 414, it was held that an insane person or his guardian, without first restoring the consideration to the grantee, may bring an action to recover land of which a deed was made by him while insane; the reason given by Mr. Justice Thomas, who rendered the opinion, being: "To say that an insane man before he can avoid a voidable deed must put the grantee in statu quo would be to say, in effect, that in a large majority of cases his deed shall not be avoided at all. The more insane the grantor was when the deed was made, the less likely will he be to retain the fruits of his bargain, so as to be able to make restitution. If he was so far demented as not to know or recollect what the bargain was, the difficulty will be still greater." This statement of the law was approved by the Supreme Court of New Jersey in the case of Eaton v. Eaton, 37 N.J.Law, 108, 18 Am.Dec. 716, with the qualification that such is the law where fraud is practiced upon one who is known at the time to be insane, but not where the purchase and conveyance are made in good faith for a good consideration, and without knowledge of insanity. Here there is a charge of fraud accompanied by allegations of facts from which knowledge by the grantee of the alleged incompetency of the grantor is necessarily inferred, and therefore the plaintiff is not bound to allege what was the consideration and offer to return it.

Generally the presumption of sanity prevails, and the burden of proofs rests upon one who asserts the contrary; but the appointment of a guardian of a person alleged to be non compos mentis by a court having jurisdiction must necessarily create a presumption of the mental infirmity of the ward (Ames' Will, 40 Or. 495, 67 P. 737), which will prevail for at least a reasonable time thereafter. There can be no doubt, however, of the general principle that the adjudication by itself cannot relate to a prior time as evidence of incapacity (22 Cyc. 1133), but, when it is shown that the mental condition of the ward had been the same for a considerable length of time, and was the same at the time of the act to be affected by it as when the adjudication was had, the adjudication is competent evidence of previous insanity ( Small v. Champeny, 102 Wis. 61, 78 N.W. 407; Terry v. Buffington, 11 Ga. 337, 56 Am.Dec. 423). And in a case where mental weakness and incapacity are the concomitants of old age, and have been gradual and continuous for a considerable time, and not the result of any recent or intervening cause, but of gradual and natural decay, such evidence is competent to show that the conditions have not changed, but were the same as when the adjudication was had. Giles v. Hodge, 74 Wis. 360, 43 N.W. 163. In the present case the deed in question was executed on January 8, 1906, when plaintiff was confined to her bed, suffering from a serious and dangerous illness. The subject-matter of the conveyance is her home and practically all of her worldly possessions. The adjudication of her incompetency took place 10 days thereafter and when she had so far recovered from her illness as to be around, and was in about the same condition of health that she had enjoyed for more than one year prior thereto. She is about 70 years of age, and there is abundant evidence in the record showing that for some time prior to the execution of the deed she was suffering mental and physical decline. Under this state of the record, the admission in the answer of the adjudication by the county court on the 18th of January that plaintiff was an incompetent person shifts the burden upon defendant to show plaintiff's competency at the execution of the deed, and to free the transaction from any suspicion of implication of fraud practiced by her in procuring its execution, and this she has not succeeded in doing.

From a careful consideration of the whole record, we are bound to say that plaintiff at the time of the execution of the deed was not mentally competent to comprehend the nature or effect of the transaction. She was about 70 years of age, ignorant and unable to read or write. The property in question was purchased in October, 1904, by plaintiff and Joseph Schindler, her husband, for the sum of $2,500, and was conveyed to them jointly. They went upon it and made it their home. In the following April Joseph died leaving to plaintiff, besides the home, a small amount of personalty. The estate was administered upon by John T. Long, as administrator, who was also plaintiff's legal advisor, and at the settlement about $400 in money was paid to her by the...