Paul v. Paul , 55 Or. 6 ( 1909 )

Mr. Justice McBride

delivered the opinion of the court.

From the foregoing statement it will be seen that the main question to be solved is that relating to the capacity of W. A. Paul to enter into the contracts and make the agreement whereby the apparent legal title to the land in controversy passed to W. S. Paul. It appears from the testimony that in 1902, W. A. Paul was a widower, about 77 or 78 years old, and that he became infatuated with one Mrs. Burss. It seems probable from the testimony that she was a married woman, and it also appears very probable that W. A. Paul, supposing her to be single, contemplated marriage with her. W. S. Paul’s testimony is to the effect that his father told him it was the understanding that he and Mrs. Burss were to be married, and that, when they were about to complete the arrangements, she suggested to him that, the children might object, and that she thought it would be better if he gave her a deed to the land to avoid any trouble, and that he gave her the deed to make her know she was all right in depending upon him. It is very evident from the testimony that the old gentleman was averse to having the matter of his relations with Mrs. Burss made public, and that, whether their relations were chaste or meretricious, he was heartily ashamed of them. The evidence as to his mental condition is very conflicting, and it is doubtful whether upon the testimony adduced for plaintiffs, there is sufficient to justify a court in finding that he was incapable of making the contracts and conveyances which are the subject-matter of this suit. Some of plaintiffs’ witnesses, while testifying to considerable physical impairment and decay, held to the belief that mentally he was fairly capable for a man of his age, others testifying to various stages of mental decay, ranging from slight impairment of faculties to absolute childishness; and it is very evident that the opinion of many of them is based in a large degree upon his conduct in respect to Mrs. Burss, which, though very foolish and unbusinesslike,' is not uncommon even among younger men when placed in the same circumstances.

. There is no legal evidence that his son used any influence or persuasion to induce his father to make the conveyances and take the notes and mortgage described in the pleadings. While it is suggested that the price paid was inadequate, we do not think the evidence shows such inadequacy as would avoid the contract. The title to 120 acres of land was clouded by a deed to Mrs. Burss, and the son also bound himself to clear the title to the land previously deeded to Kinzer. He was to all appearances buying two lawsuits, with a possibility of losing 120 acres of the land- conveyed, and this was doubtless considered by the father in fixing the price. That the father was apprehensive of further difficulty with Mrs. Burss is probably true, but there is no evidence that the son worked on these fears, or strove to make them a pretext for making a close bargain or securing the title in his own name. But we think the testimony adduced by defendant fairly establishes the fact that W. A. Paul was fully competent to convey this property, and to realize and understand what he was doing. This testimony comes from his friends, neighbors, and near relatives, and from physicians and business men who were thoroughly acquainted with him, some for more than half a century, and in our judgment far outweighs the case made by plaintiffs. ,

W. A. Paul’s subsequent act in paying Mrs. Burss $4,000 can be explained on a different theory than that advanced by plaintiffs. The testimony shows that he had long been esteemed as one of the substantial citizens of Linn County, and that he felt extremely humiliated and ashamed that his relations with Mrs. Burss should be a subject of general knowledge in the community. To avoid this and prevent injury to his reputation, he probably concluded that the better way would be to buy the woman off and take a deed back to the land he had conveyed to her, and acting upon that impulse, he borrowed the $4,000 from Ladd & Bush and Bishop, and used it for that purpose. To procure the loan he made a representation that he was the owner of a mortgage and promissory notes to the amount of his son’s indebtedness to him, and also of the land in controversy. As the note had two years to run, he doubtless thought he would be able to collect sufficient money from his son to meet it, and that the real facts would never come to the knowledge of his Salem creditors. When, however, they discovered that he had misrepresented the facts in regard to the ownership of the land and taxed him with the deception, he made the best arrangement that occurred to him to satisfy them. The testimony shows that, when Bishop reproached him for deceiving him in regard to his property, he replied “Charley, are you going to put me In the penitentiary?’* thus indicating that he fully realized the nature and even the legal consequences, of what he had done. It is a significant fact that nowhere in his conversation with Bishop did he set up any claim to any right or interest in the farm itself or attempt to excuse • his previous representations by claiming that he had any interest or equity in it. Under these circumstances, the son was sent for and the agreement for support was entered into. We think the evidence shows that the agreement was largely, if not wholly, of the father’s own suggestion, and that no persuasion or undue influence was used by the son to induce him to execute it. We think it is shown by a fair preponderance of the evidence that the defendant has substantially performed his part of the agreement, and that the court below erred in holding that the same was procured by any undue influence or fraudulent action.

The decree of the court below will be reversed, and a decree entered for defendants. Reversed.