Shearn v. Anderson, 9171-

• Decision Date: 10 July 1951
• Docket Number: No. 9171-,9171-
• Citation: 74 S.D. 41,48 N.W.2d 821
• Parties: SHEARN v. ANDERSON et al. a.
• Court: South Dakota Supreme Court

Page 821

48 N.W.2d 821

74 S.D. 41

SHEARN v. ANDERSON et al.

No. 9171-a.

Supreme Court of South Dakota.

July 10, 1951.

James M. Doyle and Hanley, Leedom & Driscoll, Rapid City, for appellant.

E. V. Morrill, Sturgis, for respondent Alvin Anderson.

Morrison & Skaug, Mobridge, for respondent Lynn Farnham.

Helm & Bottum, Sturgis, for respondents J. P. Miller, Jr., and Patsy Miller.

SICKEL, Judge.

This action was brought to set aside a conveyance of real property. Alvin Anderson and his wife, Mary Anderson, now deceased, lived on a ranch situated in Meade county consisting of 1,311 acres. The ownership of this land was as follows: 'Alvin Anderson, defendant, owned 200 acres, Mary Anderson 511 acres, Jennie Anderson Senger 160 acres, Alvin Anderson and Jennie Anderson Senger, in common, 440 acres. The dwelling and ranch buildings were located on the land owned by Mary Anderson. On November 18, 1946, Alvin Anderson, defendant, and Mary Anderson, his wife, executed a deed conveying the entire ranch to J. P. Miller, Jr., for the sum of $12,000, payable, $6,000 paid in cash and the balance secured by mortgage on the ranch. The interest of Jennie Anderson Senger was obtained by deed. On April 27, 1931, judgment was entered in the circuit court of Meade county in favor of T. P. Rogers, plaintiff, against Alvin Anderson, defendant, for $5,856.88. The judgment creditor died after which the judgment was assigned to Wilfarene Rogers, the widow, by authority of the probate court in Iowa. The judgment was assigned to Herbert J Shearn, plaintiff in this action, on July 31, 1947.

The plaintiff in this action alleges that on November 18, 1946, at the time of the execution of the deed 'Mary Anderson was mentally ill, incompetent, and without power, competence or legal capacity to execute a deed * * *.' This issue was tried in the circuit court where it was decided that '* * * Mary Anderson being of sound mind and fully competent to do so, executed and soon thereafter delivered a deed for a valuable consideration to J. P. Miller, Jr., to the lands described which was filed May 10, 1947. That said J. P. Miller, Jr., and Patsy Miller are in possession of and the lawful owners of said premises subject to a $6,000 mortgage * * *.' Judgment dismissing the action on the merits was entered and plaintiff appealed.

The burden of proving the mental incapacity of the grantor, Mary Anderson, to execute the deed was upon the plaintiff in this action. Egan v. Shindelbower, S.D., 41 N.W.2d 225, 226. The rule regarding the sufficiency of the evidence to establish incompetency has been stated by this court as follows: 'Impairment of the faculties by disease or old age will not invalidate a deed if the party executing it had sufficient mental capacity to understand his act. It must be shown that the grantor did not have sufficient mind and memory to comprehend the nature and character of the transaction. Mental weakness that does not amount to inability to comprehend and understand the nature and effect of the transaction is not sufficient to invalidate a deed.' Meyer v. Kiecksee, 68 S.D. 43, 298 N.W. 261; Egan v. Shindelbower, supra.

The evidence relied upon by the appellant in this case is that Mary Anderson had for several years suffered from arthritis and diabetes. That in July 1945 she was taken to Rochester for examination. There she was given some medicine and some general advice as to care and rest. Her husband testified that from the time of her visit to Rochester until November 1946, he noticed no change in her mental condition; that she was normal mentally during that period of time except that she became forgetful and grew weaker through steady loss of weight; that it was only the loss of weight that gave him concern during that time. Defendant, Alvin Anderson, further testified that the deed was drawn at the Faith bank about a week before November 18, 1946; that he and Mrs. Anderson took the deed home and checked the descriptions of the land piece by piece; that Mrs. Anderson knew what land was in her name and which land was in his name, and what part was in the name of Mr. Anderson's sister; he further testified that they used the township plat; that Mr. Butler came along about that time and told them about Mrs. Howard's place, an old folks' home in Rapid City, and that Mrs. Anderson said 'That will be fine, but, * * * let's get this deed signed up first'. Mr. Anderson testified that there was nothing wrong with her mentally so far as he could tell until the day after he left her at the Howard home, November 20, 1946.

Mrs. Anderson was taken by her husband to the Howard home on the evening of November 19, 1946, which was the day after the execution of the deed at Faith. They had the evening meal with Mrs. Howard and visited in one of her rooms. There they had 'quite a talk'. Mrs. Anderson told of selling the ranch and wanted to stay with Mrs. Howard to rest while Mr. Anderson went back to the ranch to dispose of the personal property. The Andersons wanted to buy a home in town as soon as it could be arranged. Mrs. Howard testified that Mrs. Anderson then showed visible signs of arthritis. She was quite nervous and a little flightly though she sat up and ate very nicely. There was nothing odd or strange about the complaints Mrs. Anderson made that night, and nothing happened to disturb Mrs. Howard to the extent that she was not going to try to keep her. It was after this visit that Mrs. Howard agreed to keep Mrs. Anderson. A day or two later Mrs. Howard talked to Mr. Anderson over the telephone and mentioned a sudden change that had come over Mrs. Anderson. She had become nervous and dissatisfied and wanted to be on the go. She flew into a rage, thought her husband had gone and left her. Once she got out of the house and the ladies brought her back. At times she would be quite rational, would sit down and visit. One day she would make her bed and the next day 'you wouldn't know whether it was a bed or a bundle of clothes to be moved out.' She was very devoted to her husband and was always talking about him. When he came to visit her she was more contended. It was then that Mrs. Howard decided that she was unable to keep Mrs. Anderson at her home. That was because she wanted to leave all the time, had to be watched always, and with other patients and help not available Mrs. Howard could not cope with the situation. Mrs. Anderson did not harm any one and...