Young v. Young

• Decision Date: 24 May 1954
• Docket Number: No. 10579,10579
• Citation: 139 W.Va. 290,82 S.E.2d 54
• Parties: YOUNG et al. v. YOUNG et al.
• Court: West Virginia Supreme Court

Page 54

82 S.E.2d 54

139 W.Va. 290

YOUNG et al. v. YOUNG et al.

No. 10579.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 1954.

Decided Feb. 16, 1954.

Dissenting Opinion May 24, 1954.

Syllabus by the Court.

1. 'The testimony of a notary public may be taken to impeach his certificate of acknowledgment concerning the mental capacity of the grantor as against the sole grantee in a deed under attack who was present at its signing and acknowledgment, when the testimony of the notary is to the effect that the certificate was procured by fraud, duress, or imposition.' Point 1, Syllabus, Jordan v. Cousins, 128 W.Va. 648 .

2. Where a deed conveying land from one spouse to the other, directly or indirectly, is '* * * attacked, by the person making such conveyance or transfer, or his or her heir, devisee or creditor, the party in whose favor it was made shall have the burden of showing that such conveyance or transfer was in all respects lawful and valid.' Code, 48-3-7. Carl L. Davis, Charleston, for appellants.

F. B. Shannon, E. Glenn Robinson, Charleston, for appellees.

GIVEN, President.

Plaintiffs, Curtis Young and Mary Young Ferrell, instituted this chancery cause in the Circuit Court of Kanawha County, against Lucy A. Young, Grover Lee Young, Glenn Roscoe Young and Bevel Young, for the purpose of having declared void a deed executed by M. L. Young direct to his wife, the defendant, Lucy A. Young, on the 15th day of November, 1949. The plaintiffs and the defendant Bevel Yount are children of M. L. Young by his first wife, and the defendants Grover Lee Young and Glenn Roscoe Young are children of M. L. Young and Lucy A. Young, the third wife of M. L. Young. The grounds upon which the deed was attacked, as disclosed by the bill of complaint, were that it was made 'without any consideration'; that Lucy A. Young procured the execution of the deed 'though the corrupt, fraudulent and dishonest practice aforesaid by which the will and intent of the said M. L. Young was, by the said Lucy A. Young, wholly overpowered and controlled'; and that the deed was not executed by M. L. Young 'of his own volition and by his own free agency but that at the said time, said M. L. Young was sick of mind and body, enfeebled and incapable of exercising any sound judgment because of said enfeebled condition.' M. L. Young died, intestate, December 27, 1950.

The trial court directed that an issue be tried before a jury 'to ascertain whether M. L. Young, deceased, was of sound mind and possessed of sufficient mental facilities to execute' the deed and 'whether or not undue influence was asserted upon said M. L. Young and fraudulent means exercised upon him to execute said deed aforesaid, and whether or not the execution of said deed was of his free will or otherwise.' Upon the trial of the issue the jury returned a verdict for the plaintiffs, which was set aside by the trial chancellor, who made independent findings, favorable to the defendants, and dismissed the bill of complaint.

Plaintiffs produced several witnesses who testified as to the mental capacity of the grantor. Only two of these, Doctor Arthur C. Litton and Thelma L. Judy, gave testimony which seems of importance. Doctor Litton testified that he treated M. L. Young from about November, 1945, to the time of his death. Apparently the visit of Doctor Litton closest in point of time to the date of the execution of the deed was on November 4, 1949. Doctor Litton further testified that he had treated Mr. Young for 'arteriosclerosis, or hardening of the arteries. He also had a cold, influenza and trouble with his bladder, with his prostate gland, and he also had pneumonia.' At the time of the visit of November 4, 1949, Mr. Young 'was suffering then from periods of arteriosclerotic insanity; that is, in such conditions the mind comes and goes due to the fact that the brain does not get the proper blood supply at times because of the hardening of the arteries, and also he was suffering from his prostate gland at that time and also from influenza at that time.' In answer to a question propounded by the court, Doctor Litton testified: '* * * A man in that state is easily led because at times he is not capable of knowing exactly what he is doing and he will follow suggestions in the way of answering questions or doing things. If you say do something he generally does it, and as a rule he could have been led to sign the deed when he didn't know what he was doing, although I am not saying he did that, because I was not there that day, but they are more easily led than a normal individual because they don't think things out for themselves.'

Thelma L. Judy, as notary public, certified to the acknowledgment of the grantor. Apparently the notary, who resided in Charleston, about ten miles from the Young home, and been requested by Mrs. Young, or one of her children by M. L. Young, to come to the Young home for the purpose of taking the acknowledgment. Mrs. Judy testified to the effect that she and her husband, who died before the trial, drove to the Young home between seven and eight o'clock of the evening on which the deed was executed; that the deed was read and executed within 'not more than five minutes, perhaps not that long' after she entered the home; and that Mrs. Young handed her the deed as soon as she entered the home and requested her to proceed with the taking of the acknowledgment immediately so that Mr. Young could be put back into bed. When asked to detail what happened upon entering the house, she testified:

'Well, I went to the house. Mr. Young was sitting at a table. Mrs. Young had the deed and said Mr. Young was very tired and to go ahead and acknowledge the deed so she could put him back to bed. I did. I went over and read the deed to Mr. Young. I asked him if he understood it and he did not make me any answer. I said to Mr. Young, I said, 'You are a very sick man.' He did not make me any answer. So I laid the deed down on the table, he started to sign it and he was just so nervous he could not and I steadied his hand with the pen while he signed the deed. As soon as the deed was signed I gave the deed back to Mrs. Young. She put it away. She came back and put him to bed. I sat there where I was. Mrs. Young then went back up to the fire and sat down after she put Mr. Young in bed, and she was talking and, of course, I was talking and my husband was talking and one of the boys, and Mr. Young started talking. I don't remember what it was but it did not make any sense whatsoever. None. He did not seem to be talking to me. He was not talking to anyone, he was just talking and he did not make any two sentences with any connection between the two sentences, and that is all I know.

'Of course, when I started out I asked my husband if he heard what Mr. Young said. He said, 'No, I was busy talking to so and so,' and I said to him, 'You know his mind is bad.' I made that remake going out the kitchen door. I don't just remember what it was now that Mr. Young had said, but what he said did not make sense. That is all I know.

When questioned on cross-examination concerning what appeared to be a 'scratch mark' on the signature, Mrs. Judy answered: 'He wanted that scratched because he did not--he said nobody could read it or something like that. He made a remark like that, I don't just remember what the remark was, but anyway it was to the effect that nobody could read it.' She further testified to the effect that Mr. Young did not know that he was doing when he signed the deed, and that at the time of signing he was not mentally competent to execute the deed.

Five witnesses testified on behalf of defendants. Phares, Hughart and Hinckley testified to the effect that they saw M. L. Young at different times during November, 1949, but gave no exact date, and that they were of the opinion that Mr. Young had mental capacity to execute a deed. Given testified to the effect that he saw M. L. Young on November 25, 1949, in Charleston at a birthday party, and talked with Mr. Young over the fence for about thirty minutes, and that he believed him to have been of sufficient mental capacity to have executed the deed. The other witness, Joseph V. Cunningham, is a son of the defendant, Lucy A. Young, by a former marriage. He was present at the time of the execution of the deed. After having contradicted testimony of Mrs. Judy in several respects, he testified, on cross-examination: 'Q. And I presume Mr. Young was perfectly normal; is that correct? A. Yes, sir, he seemed so. He signed his own name. Q. And he looked fairly well, did he? A. That is right. Q. He looked good? (No answer.) Q. What is your answer to my last question? A. Yes, sir.'

Plaintiffs can not complain of the action of the trial court in setting aside the verdict of the jury, for the reason that the verdict of a jury upon an issue out of chancery is merely advisory to the trial chancellor. Mullens v. Lilly, 123 W.Va. 182, 13 S.E.2d 634. That being true, and the trial court having set aside the verdict in the instant case, we need not consider alleged errors committed during the trial before the jury unless such errors affect the independent findings of the trial chancellor. This is not to say, of course, that the verdict upon every such issue is entitled to no consideration or weight.

Only one of the witnesses who testified on behalf of plaintiffs, Thelma Judy, a notary public, was present at the exact time of the execution of the deed. Only one of the witnesses who testified on behalf of defendants, Joseph V. Cunningham, a son of the defendant, Lucy A. Young, by a former marriage, was present at the exact time of the execution of the deed. The evidence of these two witnesses therefore becomes of prime importance. Defendants contend that the evidence of Mrs. Judy, in so far as it tends to contradict or impeach her certificate of acknowledgment, was inadmissible. The trial court so held and, with...