Wells v. Wells

• Decision Date: 26 April 1923
• Docket Number: No. 11411.,11411.
• Citation: 139 N.E. 286
• Parties: WELLS et al. v. WELLS et al.
• Court: Indiana Appellate Court

139 N.E. 286

WELLS et al.

v.WELLS et al.

No. 11411.^*

Appellate Court of Indiana, Division No. 2.

April 26, 1923.

Appeal from Circuit Court, Hancock County; Jonas P. Walker, Judge.

Action by Henry Wells and another against Nelson Wells and others. Judgment for defendants, and plaintiffs appeal. Reversed, with direction to grant new trial.

This action was instituted by Henry Wells and Laura Myers against Nelson Wells and others to cancel certain deeds. So much of the complaint as is necessary to an understanding of the controversy is substantially as follows:

“That Anderson Wells died testate on July 14, 1914, and left surviving his children, viz. Nelson Wells, Henry Wells, and Laura Myers, being his only living children; that in October, 1909, he executed a will which has been duly probated, and the executor nominated in the will is now in charge of the estate; that at the time of making his will, and continuously thereafter until his death, he was the owner of a tract of real estate in Marion County, Indiana, and by the provisions of his will he devised the real estate to his three children, giving to each a certain described part, whereby each child received an equal share thereof.

That on July 6, 1911, Nelson Wells fraudulently induced his father, Anderson Wells, to make three deeds, one to each child, purporting to convey the whole of the real estate by giving to each child a particularly described part of the tract; that the deed to Nelson Wells conveyed to him four acres, the deed to Laura Myers conveyed to her two acres, and the deed to Henry Wells conveyed to him one acre; that the portion conveyed to Nelson Wells was worth $2,000, the portion conveyed to Laura Myers was worth $1,000, and the portion deeded to Henry Wells was worth $500; and that all the deeds were recorded May 18, 1912.

That the deed to Nelson recites that the conveyance to him is made in consideration of $500; that the grantor hereby reserves the right to occupy and use said described property during his natural life; and that it is further agreed, as part consideration, that the grantee shall care for and support the grantor during his life, and upon his death shall pay all the burial expenses, and shall pay the further sum of $50 to the grantor's grandson, Franklin Wells, and shall surrender all claims he now has against the grantor.

That the deed to Laura Myers recites that the conveyance is made in consideration of the sum of one dollar and other considerations; that the grantor reserves the right to occupy and use said property during his natural life, and, as part consideration, the said Laura Myers is to assist in the care and nursing of the grantor; that the grantee shall have and hold the real estate during her life, and at her death it shall go to her two children, Mirtle Campbell and Mary Tolley; and that these grandchildren shall support their mother during her natural life.

That the deed to Henry Wells recites that the conveyance is made in consideration of one dollar and other considerations; that the grantee shall assist in caring for the grantor, and shall surrender all claims he may have against the grantor.

That while the deed to Nelson recites that it was executed in consideration of the sum of $500, in fact there was no consideration whatever for that conveyance; that the deeds to Henry and Laura were made and recorded without their knowledge or consent, and that neither of them has ever ratified the conveyances nor accepted any benefits thereunder; that, at the time the deeds were made, the grantor was a person of unsound mind and incapable of comprehending the nature of the transaction, and continued to be of unsound mind to the time of his death, all of which was known by the defendant Nelson Wells; that the plaintiffs have given notice of their purpose to disaffirm the deeds, and have offered to do whatever may be necessary to place the defendants in statu quo and are now ready and willing to comply with such equitable terms as the court may find proper; and that the defendants have refused to make the necessary deeds to vest in the plaintiffs the property devised to them by their father's will.

Wherefore, the plaintiffs pray the court to cancel the conveyances and to decree that the plaintiffs are the owners in severalty of the tracts devised to them by the will.”

The defendants joined in an answer of general denial. The cause was submitted to the court, with a jury acting in an advisory capacity. The only issue submitted to the jury was embraced in the following interrogatory: “Has it been established by a fair preponderance of all the evidence in the case that Anderson Wells, at the time of the execution of the deeds in question, was a person of unsound mind?” The jury answered, “Yes.” Thereupon the court took the case under advisement. Five weeks later the court made a general finding for the defendants. Thereupon the plaintiffs moved to dismiss their action, which motion was overruled. Judgment was rendered on the finding. At the time the finding was announced, the trial judge contributed an opinion in writing, which discloses that he was impelled to his decision by the fact that there was no evidence of “disaffirmance.” Twenty days later the plaintiffs filed a motion to set aside the judgment in order that they might be permitted to adduce evidence to prove “disaffirmance,” and embodied in the motion the opinion of the trial court. It is averred in the motion that the deeds were “disaffirmed” before the suit was commenced; that the defendant Nelson Wells was notified of the “disaffirmance” of the deeds; that he was notified that the plaintiffs would not accept the deeds and would not be bound by them; that the deeds were not binding upon the plaintiffs or either of them, and that the plaintiffs would not be bound by the provisions in any of the three deeds; and that “by inadvertence and mistake said evidence of disaffirmance was not introduced at the trial.” The motion was overruled. The plaintiffs then filed a motion for a new trial on the following grounds: (1) That the decision is not sustained by sufficient evidence, and (2) that the decision is contrary to law. That motion was overruled. The ruling on each motion is challenged by the assignment of errors.

The undisputed evidence establishes the following facts: Anderson Wells was a member of the race commonly known as the Negro race. He came to Indianapolis in the year of 1867. At that time he had a wife and two sons. He had been a slave. He claimed to be over one hundred years of age. His hair was very white. At the time he executed the deeds he was in poor health and was very feeble. His health had been poor for several years. He was illiterate. In July, 1911, accompanied by his son Nelson, he went to the office of an attorney. He told the attorney that he had made a will and that he wanted to change it. On being asked where the will was, he said that he did not know; that a neighbor had taken him to a lawyer's office, where the will was made; and that he did not know whether the lawyer or the neighbor had the will. The reason he gave for wanting to change his will was that Nelson had given him some money and would have to give him some more, that Henry did not pay what he agreed to pay, and that he did not want his children to have a lawsuit over his property after his death. The attorney thereupon told him that a party can file a claim against the estate and throw it into court just as easy under a will as if there was no will; that, in fact, wills often cause lawsuits where there would be none if there was no will; that if he cared to do so he could divide up his property now by making deeds as he saw fit; that he could reserve a life estate and put a condition in the deeds making the property liable for his support; that by doing so he would have a home to live in during his lifetime and an obligation on his children to support him; and that after his death there would be absolutely no room for any lawsuit to grow out of it, because then he would have no property when he died.

About a month afterward the attorney was called by telephone to the home of Nelson Wells. Nelson's father was there. The deeds were prepared and Anderson Wells signed each deed by making his mark thereon. Neither Henry nor Mrs. Myers was there. The deeds were left at Nelson's house. The attorney had been at Nelson's home a number of times before. He had been Nelson's attorney for 18 years. They had gone fishing together and were friendly. The grantor lived at the home of his daughter, who nursed and cared for him until his death. A day or two after the death of his father, Henry Wells mortgaged the land described in the deed made for him by his father to secure a loan of $50; but at that time he did not know that his father had made him a deed. Nelson was with him and helped him to make the loan. The same lawyer who made the deeds was consulted about this loan. Henry testified that the loan was procured to help pay his father's funeral expenses, and was so used. Nelson testified that the money was used for something else. Nelson saw his father almost daily and knew his mental, physical, and financial condition at the time the deeds were made.

Samuel J. Offutt, of Greenfield, and Emsley W. Johnson and Joseph W. Hutchinson, both of Indianapolis, for appellants.

Holmes & McCallister, of Indianapolis, for appellees.

DAUSMAN, J. (after stating the facts as above).

The first assignment of error has been abandoned. The second assignment raises a question of procedure. The Code provides that the court “shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusableneglect.” Section 405, Burns' 1914. As that section stood when this cause was tried, the relief could be obtained, in a proper case, on motion. (See Acts 1921, p. 277.) But when is a party entitled to that relief? Is the provision above quoted...