Studabaker v. Faylor

• Decision Date: 25 February 1908
• Docket Number: No. 21,219.,21,219.
• Citation: 170 Ind. 498,83 N.E. 747
• Parties: STUDABAKER v. FAYLOR et al.
• Court: Indiana Supreme Court

170 Ind. 498

83 N.E. 747

STUDABAKER

v.FAYLOR et al.

No. 21,219.

Supreme Court of Indiana.

Feb. 25, 1908.

Appeal from Circuit Court, Adams County; R. K. Irwin, Judge.

Action by Thomas Faylor and others against David D. Studabaker. From a judgment for plaintiffs, and an order overruling a motion for a new trial, defendant appeals. Reversed and new trial ordered, with instructions to sustain defendant's demurrer, with leave to amend.

See 80 N. E. 861.

W. H. Eichhorn, Geo. A. Matlock, John Burns, U. S. Lesh, and David E. Smith, for appellant. Dailey & Simmons, Sturgis & Stein, and Mock & Sons, for appellees.

JORDAN, J.

Appellees, the heirs of Catherine Faylor, deceased, commenced this action in the Wells circuit court to set aside a deed of conveyance executed by her on the 1st day of April, 1901, whereby she conveyed to appellant, David D. Studabaker, certain real estate situated in Wells county, Ind. The complaint is in four paragraphs, to each of which appellant demurred for insufficiency of facts. This demurrer was overruled, and proper exceptions reserved. Answer, the general denial. Upon the issue formed a trial was had in the Wells circuit court before a jury, which resulted in a verdict for appellees. Appellant, upon his application, was awarded a new trial as a matter of right under the statute. The venue of the cause was then changed to the Adams circuit court, wherein a third trial was had before a jury, which resulted in a verdict in favor of appellees. Over appellant's motion for a new trial judgment was rendered upon this verdict, from which he appeals, and assigns as errors the overruling of his demurrer to each paragraph of the complaint, and the overruling of his motion for a new trial.

The third paragraph of the complaint is to quiet title, under section 873, Thornton's Civ. Code (section 1082, Burns' Ann. St. 1901), to the lands therein described, and the fourth is a statutory complaint in ejectment, under section 853, Thornton's Civ. Code (section 1062, Burns' Ann. St. 1901), to recover possession of the lands in controversy, and for damages for the detention thereof. The sufficiency of these two latter paragraphs is not controverted by appellant.

The following may be said to be a fair statement of the facts alleged in the first paragraph of the complaint. It discloses that Catherine Faylor died intestate on July 8, 1902, leaving the appellees as her heirs at law. It is charged that on the 1st day of April, 1901, and also at the time of her death, she was the owner of the lands described in the complaint, the same being in number of acres 216, 123 of which she held in fee simple, and a life estate in the remaining 93 acres. The value of the 123 acres at the time of the execution of the deed in question is averred to be $12,000. On said 1st day of April, 1901, the defendant, David D. Studabaker, procured said Catherine Faylor to execute to him a pretended deed containing covenants of general warranty, purporting and pretending to convey to him said describedreal estate, situated in Wells county, Ind. The pleading then proceeds to charge that at the time said Catherine Faylor made the pretended deed in question she was about 85 years old, and was greatly enfeebled and debilitated both in mind and body; that she was blind and paralyzed, and was in such a condition mentally that she was of unsound mind and incapable of comprehending the nature of a contract and deed; that the sole and only consideration for said deed was that the defendant, David D. Studabaker, should leave to said grantor, Catherine Faylor, the exclusive possession and use of the brick dwelling house situated on the premises conveyed, together with the garden and appurtenances to said dwelling, for and during her natural life; that the defendant was to plant and attend to her garden, furnish and provide her with vegetables, provisions, groceries, and household necessities, and procure a suitable and satisfactory person to live with and take care of her. He was to transact all of her business affairs, and at her death he was to carve her name upon the tombstone of her deceased brother, Thomas Faylor. The paragraph then alleges facts to show a disaffirmance of the conveyance on the part of the plaintiffs, and alleges that they are the legal owners of the real estate described, and that the defendant, ever since the pretended execution of said pretended deed, has been in possession of said premises, enjoying the rents and profits thereof, which are of the value of $900 per year. The prayer is that the deed be set aside, and that plaintiffs be declared to be the owners of said real estate, and for all other and proper relief.

The second paragraph discloses the following facts: After averring that the plaintiffs are the heirs of Catherine Faylor, who died intestate on the 8th day of July, 1902, alleges that said Catherine Faylor, on the 1st day of April, 1901, was the owner of the lands described in the complaint, being 216 acres, 123 of which she owned and held in fee simple, and that this tract was valued at $12,000, and the remaining 93 acres she held as a life tenant. It is then charged that on said 1st day of April she, said Catherine Faylor, executed a pretended deed purporting to convey all the aforesaid described lands to the defendant, David D. Studabaker; that at the time said Catherine made this pretended deed to the defendant she was about 85 years old, was blind and paralyzed, and was greatly enfeebled and debilitated in both mind and body, so much so that she was of unsound mind, and was incapable of comprehending the nature of a contract or deed; that the mental condition of said Catherine Faylor was well known to the defendant, David D. Studabaker, at the time he procured the pretended execution of said deed and possession of said real estate; that he, knowing said facts, for the fraudulent purpose of procuring the conveyance of the possession of said real estate, and of cheating, wronging, and defrauding said Catherine Faylor out of the same, fraudulently pretended and represented to her that he was her friend, and truly sympathized with her in her loneliness and helplessness; that her relatives were a worthless, “broken-up set,” and cared nothing for her; that her nephew Peter Faylor was then engaged in an effort to send her to the poorhouse; that her niece Elizabeth Stout who had waited upon and cared for her a number of years prior to the time of said conveyance, cared nothing for her, and was also engaged in an effort to send her to the poorhouse; and that both said Peter Faylor and Elizabeth Stout, who had been actively concerned in looking after her interests, made him and her trouble every time they came upon the premises, and he was going to order them off. It is alleged that in addition thereto the defendant made said Catherine Faylor great protestations of love and affection for her; that by reason of her unsoundness of mind and said false and fraudulent representations so made by David Studabaker to said Catherine Faylor, which she believed to be true, and which she relied upon, he procured her thereby to convey to him said land for the pretended consideration of permitting her to live in her own dwelling house, have the use of the garden which he was to attend to for her, furnish her such garden vegetables as she might need, and that he would do her chores and furnish her a person to live with and care for her, and that he would carve her name upon the tombstone of her deceased brother, Thomas Faylor. Then follow averments of facts to show the disaffirmance upon the part of the plaintiffs, and the allegation that defendant, since the execution of said pretended deed, has had possession of said real estate and received the rents thereof, amounting to the sum of $900 per year. The prayer is that the deed in controversy be set aside, and that plaintiffs be declared to be the owners of said real estate, and for all other and proper relief.

It appears to be conceded by the parties to this action that the first paragraph of the complaint, under the facts therein averred, proceeds upon the theory that Catherine Faylor, the deceased, at the time of the alleged execution of the deed of conveyance by her to appellant, was a person of unsound mind, but that she had not been judicially held to be such a person and placed under guardianship. Therefore her deed in question was merely voidable. The infirmities imputed to this paragraph by appellant are, first, that it does not by any positive averments disclose that he, at the time he dealt with her and obtained the deed in controversy, as alleged, had any notice or knowledge that she was of unsound mind; second, that the pleading on its face discloses that the deceased survived for over 15 months after the execution of the deed to appellant, and that during this period of time it must be assumed, as there is nothing in the paragraph to the contrary, that he discharged his duty under his agreement by performing the services and all the obligations which constituted the consideration for the conveyance, viz., planting and attending said Catherine's garden, furnishing and providing her with vegetables, groceries, provisions, and household necessaries, and in procuring for her a suitable person as a caretaker; that in addition to this, he, as obligated, transacted all of her business affairs, etc. It is argued these things must be considered as necessary to said Catherine and for her benefit; but notwithstanding it is asserted appellees in their pleading make no offer of restitution or in any manner to compensate appellant for his services and outlay in behalf of the deceased, or, in other words, that under the circumstances they make no offer whatever in their pleading to do equity in the premises. Had appellees been content not to have pleaded specially, as they do in their first paragraph of complaint, in order to have set aside the deed of ...