Collins v. Collins , 45 N.J. Eq. 813 ( 1889 )

The opinion of the court was delivered by

Garrison, J.

Noah Collins, who had three sons, Isaac, Andrew and John, died at the house of John, with whom he had, a short time before, taken up his residence. A week prior to his death, which occurred on November 21st, 1881, he conveyed to John, by two deeds of conveyance, four lots of land, subject to two mortgages. In 1887 Isaac took-from his brother Andrew a conveyance of all his right, title and interest in the said lots of land, and, being thus in a position to represent the whole of the outstanding title, he exhibited, in the court of chancery, a bill of complaint against John, attacking the conveyances made by Noah, the father, to him, upon the ground that they were without consideration and obtained by fraud and undue influence. It was contended that the father, who was old, was without the mental capacity to transact business; that there was no delivery of the deeds to John; that the conveyances were without lawful consideration, and that they were obtained by John’s undue influence over his father.

The adoption of these views by the court of chancery led to a decree annulling the conveyances and setting them aside.

The defendant’s appeal brings the case before this court upon bill, answer and proofs.

There is nothing in the proofs to warrant the assumption that Noah Collins was lacking in mental capacity at the time of the execution of the conveyances in question. The testimony of the complainant and his witnesses, when confined to matters of fact, shows that the man was old, and that he had long been ailing with malaria, but fails to point to a single occurrence or circumstance upon which to rest a belief that he was impaired in his mental capacity. He continued to work about, he read the papers and the Bible, until attacked by an acute pneumonia, which carried him off after less than a week’s illness. The testimony of the medical witness who attended him is utterly void of weight. After saying that he does not remember what was the matter with the old man, or how his examination resulted, or what he treated him for, or what he gave him, or whether he prescribed for him at all, and, after admitting flatly that he does not recollect what the mental condition of his patient was, he ventures the opinion that h.e was incapable of attending to. business at that time. Inasmuch as the witness had just stated that he had no recollection of his patient’s mental condition, that •cause of incapacity, at least, is eliminated from his testimony, leaving the physical condition, which led to the calling in of the .physician, as the only rational basis for the opinion expressed.

The other witness, called to prove incapacity, proved altogether too much. He testified that he had not seen Noah Collins for •eight months before his death (the only period in controversy), but that, for ten years previous, he had had no capacity to attend to business, covering, thereby, a period during which the defénd■ant, John, had no dealings with his father, while the complainant ■and his other brother had dealt with him as if he was amply ■able to take care of himself. On the other hand, the testimony •of those who saw him down to the time of his death, including the officer who took his acknowledgment, shows the grantor to (have been simply a feeble old man, working a little, resting a good deal, complaining of physical ailments, attributed by the family to malaria, but in no sense imbecile or lacking in his ordinary faculties.

If we again turn to the proofs for evidence of undue influence, we find a state of things singularly at variance with such a notion. Noah had been living with his other sons. John did not seek out his father or endeavor to subject him to his influence ; on the contrary, the father sought out this son, hoping to find in his home an asylum denied him by his other sons, who had acquired from him substantial financial benefits. The relations between the defendant and his father, from this time on, -are devoid of any of the indicia of undue influence. There is no suggestion of cajolery, pretended solicitude, or of any of the •ordinary artifices or practices by which undue influence is accustomed to be exerted. So fhr is the contrary true, that the son, upon his father’s advent, informed him, Avith almost impious candor, that he must use his own property for his maintenance and cannot “ live off” of him, or, as the complainant’s witnesses express it, he told his father, “ You can either fish or cut bait — sign them papers or-go out of doors, for I won’t keep you while you’ve got property.”

We are not called upon to express any opinion as to the standard of filial conduct here displayed, suffice it to say, that no presumption of undue influence should rest upon the fact of family relátionship in view of such language — more brutal frankness could not have existed between total' strangers. The mere fact of kinship does not raise a presumption of undue influence; it is only a link in the chain, and may be rebutted by the other facts in the case.

The father appears to have accepted the proposition thus roughly laid before him, for he forthwith took up his residence with John, and the deeds were soon afterwards prepared, although they were not acknowledged until the week of final illness, some-four months later.

The relationship out of which undue influence can be presumed not having been shown, there must be some direct proof' of fraud in order to set aside the conveyances. It is said that such proof is to be inferred from the gross inadequacy of the consideration for the conveyances. Apart, however, from the-circumstance that mere inadequacy, unconnected with fraud, will not induce a court to set aside a deed, the consideration, in the-present case, was not grossly inadequate. The grantor did not,, it is true, live long enough to swell the cost of the property up to the valuation put on it by the complainant’s witnesses; but that is not the test. The consideration must be judged as of the time the bargain was made, when its ultimate amount was problematic, not after death has liquidated it. The services bargained for were rendered down to the time fixed, not only by the parties themselves, but beyond which, from their nature, they could not extend ; the consideration is a valuable one, and will be upheld at law. The fact that by the death of the father the actual expense incurred by the son does not equal the true value of the property conveyed, is without significance, in the absence of fraud.

Moreover, the complainant has slept on his rights for seven years, a clear case of laches, especially in view of the fact that the claim against the father’s estate, which John would otherwise have had, is now barred by the statute of limitations.

The contention, that the ■ deeds will be presumed not to have been delivered, is contrary to the rule of law and opposed to the presumption of fact. The deeds had been prepared and signed; the old man was ill enough to cause a doctor to be sent for; a '.few days afterward, and before he is again taken down, an officer •is procured to take his acknowledgment, and then the final act necessary only for the purposes of record and proof is added. It will not be presumed that this was done without a purpose, • and no purpose that does not include delivery will satisfy the presumption.

Fraud not having been shown in the transaction, and there being no circumstances to throw upon the appellant a burden of •proof which the testimony does not sustain, the conveyances .should stand, and the decree be reversed.

Decree reversed.

For affirmance — Dixon, Magie, Reed, Cole, Smith — 5.

For reversal — The Chief-Justice, Depue, Garrison, Scudder, Van Syckel, Brown, Clement, McGregor, Whitaker — 9.