Walton v. Malcolm

• Citation: 264 Ill. 389,106 N.E. 211
• Decision Date: 07 October 1914
• Docket Number: No. 9444.,9444.
• Parties: WALTON et al. v. MALCOLM et al.
• Court: Supreme Court of Illinois

264 Ill. 389

106 N.E. 211

WALTON et al.

v.MALCOLM et al.

No. 9444.

Supreme Court of Illinois.

June 16, 1914.

Rehearing Denied Oct. 7, 1914.

Error to Circuit Court, Coles County; E. R. E. Kimbrough, Judge.

Ejectment by Thomas E. Walton and others against W. B. Malcolm and others. Judgment for plaintiffs, and defendants bring error. Reversed and remanded.S. S. Anderson and H. A. Neal, both of Charleston, for plaintiffs in error.

Albert C. Anderson and Chas. C. Lee, both of Charleston, for defendants in error.

CARTER, J.

This was an action in ejectment in the circuit court of Coles county. Two suits were brought by defendants in error-one against Marion Green and one against Homer Popham, they being tenants of the two pieces of property in question under plaintiffs in error. The two cases were consolidated, and a stipulation was entered into that the real parties in the case as plaintiffs were the sole heirs of Anderson Walton, deceased, named in the stipulation, and that the real parties interested as defendants were the only heirs at law of Malinda A. Walton, deceased, also named. This stipulation also provided that the defendants (plaintiffs in error) claimed title through a certain chain commencing with two deeds from Anderson Walton, and that the plaintiffs (defendants in error) claimed title to the real estate directly as heirs of Anderson Walton. The jury rendered a verdict in favor of defendants in error, and the court overruled the motion for new trial and entered judgment on the verdict. This writ of error has been sued out from that judgment.

Anderson Walton, at the time he executed the deeds here in question, was about 85 years of age and a resident of Charleston, Ill. During his earlier life he had been in business and acquired a fair amount of property, mostly in farm land. He had six children by his first wife. Before the time the deeds were executed his first wife had died and he had married a second time. By his second wife he had no children. He and his second wife conveyed one of the tracts of real estate here in question to W. R. Patton and the other to Andrew B. Allison. At about the same time Patton and wife and Allison and wife conveyed the tracts to Malinda A. Walton, the second wife. Defendants in error, who are Anderson Walton's heirs, claim that these deeds did not pass title to the real estate therein described, for the reason that Walton was not of sound mind at the time the deeds to Patton and Allison were executed. The deeds in question were prepared by George Dornblaser, a justice of the peace. There seems to be no question raised in the record as to their being executed in due form and without duress or undue influence, as those terms are understood in law. A number of witnesses were introduced on each side as to the mental condition of Walton at the time the deeds were made. These consisted of business and professional men in and about Charleston who had known him for many years. From the evidence it appears that Walton was often under the influence of liquor; that he had a horse of which he was very proud and drove it rather recklessly about the streets of Charleston and the public square; that he was continually trying to make public speeches to the bystanders, whether adults or children, if he could get them to listen to him. The import of his talks seems to have been rather rambling remarks about Washington, the Declaration of Independence, and the speaker's views on politics, religion, and ethics. The witnesses seem to agree that he was intoxicated a considerable portion of the time and when in that condition was unable to transact business intelligently. The witnesses for defendants in error, generally, testified that they thought Walton unable to transact business, whether intoxicated or sober, while those for the plaintiffs in error thought when sober he could transact ordinary business.

Counsel for defendants in error contend that the testimony shows that Walton was afflicted with senile dementia and arteriosclerosis, brought on by advanced age and his intemperate habits. The chief contention of plaintiffs in error is that in this action of ejectment the deeds of Walton could not be attacked by evidence as to his lack of competency to execute them; that if Walton was incompetent to execute the deeds the remedy was in equity and not on the law side of the court.

[1][2]Under our statute every contract by a lunatic, after he is so found by a jury, is void as against him and his estate; but, if made before, such finding may be avoided. Hurd's Stat. 1913, c. 86, §§ 14, 15, p. 1590. Walton had never been found mentally incompetent by court proceedings. Under this statute and our decisions this deed was therefore voidable and not void. Scanlan v. Cobb, 85 Ill. 296;Ronan v. Bluhm, 173 Ill. 277, 50 N. E. 694;Peck v. Bartelme, 220 Ill. 199, 77 N. E. 216. And to the same effect are 1 Devlin on Deeds, § 73, and 22 Cyc. 1196, and cases cited. When a person has been declared a lunatic under this statute, such fact has been held a legal defense that can be urged to an action on a note executed by such lunatic after he had been adjudged mentally incompetent. McCormick v. Littler, 85 Ill. 62, 28 Am. Rep. 610. But the question as to whether the defense of mental incapacity can be given in an action of ejectment when the person has never been found a lunatic under the statute has not been decided by this court. The authorities in other jurisdictions are in irreconcilable conflict on the question. They are reviewed at some length in Smith v. Ryan, 191 N. Y. 452, 84 N. E. 402,19 L. R. A. (N. S.) 461, 123 Am. St. Rep. 609,14 Ann. Cas. 505, and note. Some of the states where such evidence as to incompetency can be given in an action of ejectment are either under a Code of those in which the distinction between common-law and equity jurisdiction has not been maintained. In some of the states the deed of a person non compos mentis is held void-not voidable-as in Farley v. Parker, 6 Or. 105, 25 Am. Rep. 504. In some, where the distinction between common-law and equity jurisdiction is followed, such evidence in an action of ejectment has been admitted without any discussion as to the question here involved. Eaton v. Eaton, 37 N. J. Law, 108, 18 Am. Rep. 716. Neither do the standard text-writers agree on this subject. In Elliott on Contracts (volume 1, § 383) it is assumed that such evidence can be admitted in an ejectment suit, while Bigelow on Frauds (volume 1, p. 76) states that the purchaser under such a deed cannot be expelled by an action in ejectment, as that must be based on a ‘legal title.’ Warvelle on Ejectment states (section 334):

‘The better rule, and that which is sustained by the volume of authority, is that the deed of an insane person whose incompetency has not been judicially determined is not void but voidable merely, and is effectual to pass title, with all its incidents, if unassailed. * * * If the deed is regular in form and execution, it conveys the legal title, and its effect can be avoided, if at all, only upon equitable grounds and by the introduction of extrinsic proof. From this it follows that such a deed, in the absence of statutory aid, cannot be avoided in an action of ejectment, but resort must be had for this purpose to a court of equity, where the interests of all parties can be protected.’

This doctrine is fully sustained by the courts of Michigan, Maryland, and Missouri. Moran v. Moran, 106 Mich. 8, 63 N. W. 989,58 Am. St. Rep. 462;Evans v. Horan, 52 Md. 602;McAnaw v. Clark, 167 Mo. 443, 67 S. W. 249. The recent case of Smith v. Ryan, supra, decided by the New York Court of Appeals, which counsel for defendants in error deem decisive, cannot be so held, for, as said in that opinion, in that state the Code of Civil Procedure in express terms authorizes the determination, in an action at law, of equitable defenses which could not ordinarily be raised in a common-law action of ejectment.

It has repeatedly been said by this court that in actions of ejectment legal titles, only, can be considered. In Chiniquy v. Catholic Bishop of Chicago, 41 Ill. 148, page 155, it was said:

‘Plaintiff was vested with the legal title, and, being so vested, it must, at law, prevail against all and every equity.’

In Rountree v. Little, 54 Ill. 323, page 325, the court said:

‘The plaintiff in ejectment cannot recover merely by showing an equity. If Groves has acquired the legal title through either actual or constructive fraud, and if the plaintiff is entitled to it, he must seek his remedy in chancery.’

In Fischer v. Eslaman, 68 Ill. 78, page 82, in discussing the evidence that could be admitted in an ejectment proceeding, it was stated:

‘We cannot deal with the equities of the parties in this form of action. The plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of the defendant's. [Citing authorities.] An equitable title forms no bar to a recovery in ejectment, * * * and by necessary consequence would not authorize a recovery in that form of action. The legal title must prevail against every equity.’

In Johnson v. Watson, 87 Ill. 535, page 540, it was stated:

‘Legal titles must prevail in an action of ejectment. If a legal title so acquired is challenged, it cannot be adjudicated in a court of law, but a court of chancery must be invoked. The deed is not void, but voidable only, and a court of chancery may set it aside. Until that is done, it must, at law, prevail.’

In Esker v. Heffernan, 159 Ill. 38, page 43,41 N. E. 1113, page 1115, the court said:

‘An action of ejectment being one at law, and not in equity, naked legal rights, and not equitable rights, must prevail.’

In McFall v. Kirkpatrick, 236 Ill. 281, page 292,86 N. E. 139, page 142, the court, in discussing this question, said:

‘In ejectment, legal titles alone can be considered and adjudicated, and unless plaintiff showed a good legal title the judgment...