Warner v. Warner

• Decision Date: 12 March 1903
• Citation: 66 N.E. 760,30 Ind.App. 578
• Parties: WARNER v. WARNER.
• Court: Indiana Appellate Court

30 Ind.App. 578

66 N.E. 760

WARNER

v.WARNER.

Appellate Court of Indiana, Division No. 1.

March 12, 1903.

Appeal from Circuit Court, Adams County; D. D. Heller, Judge.

Action by Sarah E. Warner against James Warner. From a judgment for plaintiff, defendant appeals. Reversed.E. V. Harris and J. T. Merryman, for appellant. Robertson & O'Rourke, for appellee.

BLACK, P. J.

This cause was commenced in the Allen circuit court, wherein a demurrer to the complaint for want of sufficient facts was overruled. In her complaint the appellee, Sarah E. Warner, alleged that she was the widow of Samuel Warner, deceased, who died September 1, 1900, in Allen county; that while he was dangerously ill, August 30, 1900, the appellant, James Warner, who was his father, through the agency of his two other sons, Berlin and William Warner, “wrongfully and tortiously induced the said Samuel Warner, without her knowledge or consent, to execute to said James Warner, his father, a paper he represents was a bill of sale, which described and conveyed to said James Warner all the personal property of which said Samuel was possessed, and that, to procure the signature of said son to said instrument, the said two sons, acting as agents for the said James Warner, represented that he was security for said Samuel to a considerable amount, and promised to apply the proceeds of said property to the payment of the debts of said Samuel; that, at the time said instrument was signed as aforesaid, said Samuel was suffering intensely from an illness which required a surgical operation, and was unfit to transact any business, by reason of his physical and mental condition, resulting from said illness, and that the possession of said property was not delivered to said James Warner; that an operation was performed upon him the next day after his father had procured his signature to said instrument, from the effects of which operation he never recovered, but died on the succeeding day (the 1st day of September, 1900); that immediately after the funeral said two sons, Berlin and William, as agents of said defendant, James Warner, on the 4th day of September, 1900, appeared at the home of plaintiff and said decedent, and presented said instrument and demanded possession of all the personal property; that she was worn out with attending upon her said husband, and so worried as not to be in a condition to realize her condition, or fully understand what was required of her, or know her rights, and believed from the representation of the defendant that she had no choice, and, he promising to pay all the debts of her deceased husband, she consented only upon that condition to defendant's taking possession of said property, which he then, for the first time, did; that subsequently thereto she made application to the circuit court to have said property so taken possession of by defendant set off to her as widow of decedent, it being of value not exceeding the sum of $500, and that said court had set off the same to her under said provision of the law; that she has caused demand to be made upon said defendant to return the said property to her, but he has refused, but he has taken and appropriated to his own use all of said property, and has wrongfully and tortiously appropriated the proceeds of such sales to his own use, and has not paid the debts of said decedent, as he promised to do, nor any part thereof, but wrongfully refused to pay said debts, or any of them. Wherefore she demands judgment for the value of the goods so taken and appropriated by said defendant, with interest, in the sum of six hundred dollars, and for all other proper relief.”

Whatever may have been the purpose, the pleading does not contain any sufficient charge of fraud. The knowledge or consent of the wife was not necessary to enable the decedent to sell or mortgage his personal property, and no misrepresentation of any matter of fact is shown. The pleading does not set forth the contents of purport of the paper signed by the decedent, or affirmatively show its character. It is alleged that the appellant “represents” it as a bill of sale which described and conveyed to the appellant all the personal property of which the decedent was possessed. It is not shown whether such representation, if made to the decedent, would have been true or false; and the same may be said of the allegation that the appellant's agents represented that appellant was security for the decedent to a considerable amount.

The pleading does not show unsoundness of mind of the decedent, nor does it show sufficiently that the appellant fraudulently took any advantage of mental weakness or incapacity of the decedent in the procurement of his signature. Nor is there shown any unsoundness of mind of the widow, or fraudulent representation to her. She consented to the taking possession of the property on the promise of the appellant to pay all the debts of the decedent, and upon such condition.The value of the property described in the instrument, and taken by the appellant, is not directly stated, nor is there any statement of the amount of the indebtedness which the appellant promised to pay, or who were the creditors. The specific demand was for judgment for the value of the goods, with interest, in a specified sum, and not for the amount of any debts which the appellant had failed to pay as promised.

Any discussion relating to the character of the transaction between the appellant and the decedent must proceed, necessarily, on conjecture, for the averments of the pleading are too uncertain and indirect to furnish a sure basis of legal deduction. The appellant, in argument, inclines to a theory that the transaction was a bargain and sale, while the appellee seems to regard it as in the nature of a mortgage to secure the payment of debts of the decedent for which the appellant was his surety, and bases a claim of invalidity on the ground that there was no immediate delivery, and that the instrument was not recorded. It does not appear from the complaint that it was or was not recorded, and, if the recording was necessary to its validity as against the widow, it would be incumbent on her to show, in her attack, the fact which rendered the transaction invalid. It was alleged that the appellant did not take possession of the property until after the death of his son, when he did so...