Doran v. McConlogue ( 1892 )

Opinion by

Mb. Justice Gbeen,

After a very patient and attentive reading of all the testimony in this case relating to the material points of contention, and upon a full consideration of the able argument of the learned counsel for the appellant, we are of the opinion that the findings of fact and conclusions of law contained in the master’s report are correct. The findings of fact, having been confirmed by the decree of the learned court below, are to be treated as if established by the verdict of a jury, and not to be disregarded except for plain mistake.

It seems to us that the findings of fact are clearly justified and sustained by practically all the material portions of the testimony. The leading points of contention relate to the question of confidential relation between Jeremiah Gardner and his wife’s niece, Ellen McConlogue, to the mental condifcion of Gardner at the time of the execution of the deed of July 19, 1887, and to the consideration of the deed. The allegation that there was fraud or undue influence, or imposition of any kind practiced by Mrs. McConlogue upon Mr. Gardner, is entirely unsupported by the testimony.

In reference to the question of confidential relation, we are clearly of opinion that no such relation existed. The undisputed testimony shows that Mrs. McConlogue was, for the greater part of the time, the servant of Mr. Gardner, and, from the time of his wife’s death, his housekeeper. In her capacity as servant she performed all the menial services required from a person occupying such a position, attended to all the cooking, washing, scrubbing and other household duties which devolved upon her, until the time of her marriage. From that time Gardner seems to have merely lived with the defendants as a boarder, upon consideration that they were to occupy the house without any charge for rent, and that he was to furnish the fuel consumed in the house.

While it is true that Mrs. McConlogue was, to a certain extent, in custody of the rent and other moneys which were received by or for Mr. Gardner, it is also true that he had entirely free access thereto and the use thereof, and continued in the reception of the income of the property until the time of his death. There is no evidence that she, at any time, appropriated any portion of these moneys to her use, and there does not appear to be any allegation or proof that she was paid any money by way of compensation for her services. We fail to discover any evidence establishing a relation of trust or confidence on her part other than such as would exist between a master and a faithful servant.

So far as the relation of a boarder in the family of defendants is concerned, it is quite plain that no trust or especial confidence can be held to exist between them. In case of Audenreid’s Ap., 89 Pa. 114, we held that there was nothing in the confidential relation of a medical adviser to a patient that per se forbids the acceptance of a gift by him from his patient. We cannot see that in the mere relation of master and servant there can be any implication of confidential relation, and, of course, there is none between a boarder and his landlord. We therefore dismiss that portion of the case from further consideration.

The case then must stand upon the allegations of mental unsoundness on the part of the grantor in the deed of July, 1887, and upon want of consideration for the execution of the deed. Incidentally, in this connection, the question of subsequent ratification arises, which we will presently consider.

So far as the averment of mental unsoundness of the grantor is concerned, we have carefully read the whole of the testimony bearing upon that subject, and we are constrained to say that we think it altogether inadequate to establish the fact of such condition. While it is true that the grantor was the subject of an attack of paralysis, the evidence of the attending physicians shows that it was not a severe attack, and that it affected chiefly the patient’s power of locomotion and control of his limbs and other members, and does not indicate that there was any degree of mental aberration. Mere difficulty of speech, in such cases, proves nothing as to mental condition.

Dr. Malone, who attended him on five consecutive days immediately after his attack, testified to his physical condition as being one of great feebleness, and that at times he was not able to talk intelligently, and that, in his opinion, at those times he was not competent to transact business. But he also testified that the attack was only a partial one, and that he improved under his treatment, and that at the end of five days he ceased visiting him. He said that he had very little conversation with him, on account of his difficulty of speech, but that Gardner managed to make known his condition in reply to questions as to what was the matter with him. He said, also, that when he ceased to visit him there was some improvement in his mind, though he was still not clear, and, also, that he supposed that Gardner knew what property he had. He testified in addition, that, after he had ceased his visits, Gardner came to his office sometimes, and they would talk together, and when he would meet him on the streets he would tell him how he was getting along; that he thought he was better than he was, and that this was immediately after he ceased his visits.

Dr. Stout, who attended Mr. Gardner shortly after his attack, said that the patient called at his 'office and told him that he had had an attack of paralysis recently, and that he treated him once or twice for that disease. He said that his face was partly paralyzed, and that he had conversations with him and observed him, and that, in his opinion, his mind did not seem to be affected ; that it appeared to be clear; and that the attack was a slight one. He also said, that, at that time, in his judgment, Gardner was competent to transact business, so far as intellect was concerned.

Dr. Addis, who was attending Mrs. McConlogue during her confinement, shortly after Gardner’s attack, testified to his observing his condition and to full conversations with him, and said he did not notice any impairment of his mind on those occasions, that the attack was a slight one, and that he spoke as 'rationally as at all other times. He was asked: “ Q. From your observations, are you of opinion that he was of sound and disposing mind and memory at that time? A. Yes; at that time it never occurred to me otherwise.”

Patrick Whalen, Mary Ann Gardner and Martin Dewire, were the other witnesses of the appellant on this subject, but an examination of their testimony fails to disclose any specific facts showing mental unsoundness, and without such facts, as we have often held, opinions are of no value.

By far the most important testimony on the subject of the sanity of the grantor, at the time of the execution of the deed, was that of John Kline. He was the attorney who wrote the deed in question, and he described the circumstances attending the preparation and execution of the deed in detail. When he entered the room he asked Gardner what he wanted of him, and was told he wanted the witness to make a deed over to Ellie, and wanted it done that day. After some further conversation, Kline went out and got a blank deed and brought it back, and wrote the deed in the old man’s presence, and he testified: “After the deed was written, I read it over to him. Q. The whole deed? A. Yes; and explained it to him. I told him what it contained, and he expressed satisfaction. Q. What did he say ? A. He said it is all right, she is the only one I care anything for.” He described the execution of the deed and its acknowledgment, and testified that, in his opinion, Gardner was, at the time of executing the deed, of sound and disposing mind. Other witnesses having opportunities of observation and knowledge of the man, testified to the same effect. It is not necessary to enlarge upon the testimony on this subject. It is sufficient to say that, in our opinion, it fully justified the master in his finding that, as a fact, Gardner was of sound mind, and understood fully what he was-doing when he executed the deed.

The case is not the ordinary one of a single voluntary conveyance, by a person, of all, or part of his estate to another. A similar conveyance was made by Gardner to Mrs. McConlogue some years before, when there was not the slightest question as to his mental soundness. Subsequently he asked her and her husband to reconvey to him the property, and they did so. He also made at least one will in her favor, giving her all his property, and finally made the deed in question at a time when he supposed he had not long to live.

In addition to the foregoing, he most distinctly confirmed and ratified the deed, by having Mrs. McConlogue and her husband execute a mortgage upon this very property, to secure a debt of $600 which he owed to A. C. Borhek. This gentleman was examined as a witness and testified that he had some hesitancy about accepting the mortgage, because the deed of July 19, 1887, only had one attesting witness, and thereupon Gardner acknowledged, in January, 1889, to Borhek and Kline, that he had executed the deed, and Borhek signed it as an attesting witness. Kline also testified to the same facts, and, in view of this testimony, the finding of the master that this was a ratification of the deed, was not only justified, but peremptorily required by the overwhelming weight of the evidence. The mortgage was a direct asserting of the title of the mortgagors, and that title was literally created by the very deed which the grantor is seeking by this proceeding to have set aside. He certainly could not be permitted to do this as against the mortgagee, whom he induced to accept the mortgage as a valid security for his debt. As a distinct act of ratification, it was just as efficacious as between him and his grantee in the deed.

It was further found by the master that there was a good consideration for the deed. In this finding, also, we concur. It was not at all necessary that there should have been an original contract to compensate Mrs. McConlogue for her services in order to sustain the validity of the deed. It is quite sufficient if it appear, as it abundantly does, that services were rendered by the grantee to the grantor, and, by the recital in the deed, these services were distinctly recognized as, at least, a part of the consideration upon which the deed was executed. In addition to that, the grantee voluntarily, but at the request ■of the grantor, encumbered the property with a mortgage to secure a debt of the grantor to the extent of $600, and that was, in any point of view, a valuable consideration in support of the conveyance, although it occurred after the deed was made. This transaction was binding upon the grantor by wa,y of ratification of the original deed, by way of estoppel, both as against the creditor who accepted the mortgage upon the faith of the title, and as against the grantee who assumed a pecuniary obligation of the grantor, and as an added consideration to the original consideration of services long-continued and valuable in their character, rendered by the grantee to the grantor.

All the features we have thus referred to establish a wide difference between this case and those which usually appear in the books, in which courts of equity do occasionally, and for reasons specially operative, exercise the very delicate power of setting aside executed obligations and conveyances of property. We do not consider that any of the persuasive reasons which influence courts in the exercise of this power are present here. For in this case the grantee was not a volunteer, but a meritorious party, who had actually furnished a valuable consideration in the form of substantial personal services for a number of years, of which the grantor had received the full benefit. Added to this, she assumed a pecuniary obligation of the grantor at his request to the amount of $600, and conferred a distinct lien upon the property to that extent. The principles upon which a voluntary conveyance are set aside in equity have no application in such a case. It is, moreover, absolutely certain that the grantor knew thoroughly well what he was doing when he executed the deed in question, and thereby did precisely what he intended to do, and had done twice before, both by deed and. by will, and it therefore cannot possibly be said that he acted in ignorance of the consequences of the transaction.

But, in addition to this, it is testified most positively by the legal adviser who drew the deed, that he received and literally carried out, the specific instructions of the grantor in the preparation of the deed; that he read over the deed to the grantor and explained its contents to him before it was signed, and that he had been, and was, in the habit of rendering professional services to the grantor on other occasions, and had ample reason to suppose he was doing so ill this instance. Therefore it cannot be said that the grantor did not have the benefit of independent legal advice. There is not the slightest reason to discredit the testimony of the legal adviser who performed this service. He is entirely disinterested, and a thoroughly reputable gentleman and lawyer, and there is not a shred of testimony in the case impugning either his veracity or his integrity.

To cap the climax of the mass of testimony tending so powerfully to establish the validity of the deed in question, there is entirely undisputed evidence of an explicit act of subsequent ratification eighteen months after the execution of the deed. This included, not merely a fresh consideration given, but a new and specific declaration of the formal execution of the deed, and a new attestation of it by another and independent witness. The testimony on this subject is of the most satisfactory and conclusive character, it is entirely trustworthy in every respect, and no court could possibly disregard it in the just performance of its duty. There is no pretence that the grantor was not at this time perfectly conscious of the act he was doing, that he was not in the full possession of his faculties, or that he was in any degree influenced against his will or his desire. On the contrary, the giving of the mortgage for his own debt by the grantee in the deed and her husband, who were not subject to any legal obligation to do so, was done at his personal instance and desire, and for his own personal benefit and advantage.

It is only necessary to add, that the account given by Gardner, who was examined as a witness, of the circumstances occurring at the execution of the deed, is simply absurd, and quite unworthy of belief. It is interested testimony, at the best, and is so incredible in its details, and so entirely opposed to all the other testimony as to the same transaction, that no court or jury could give it credence. It was not believed by the master or court below, and it is not believed by us.

In regard to the non-insertion of a power of revocation in the deed, it is only necessary to say that, as this was not a mere voluntary conveyance, but one founded upon a good consideration, it was not proper that it should contain a power of revocation, and the absence of such a power is entirely immaterial.

Nor do we consider that there was any unreasonable importunity on the part of Mrs. McConlogue in obtaining the execution of the deed. We discover no evidence of anything more than a moderate and proper solicitation, and but little of that. As she had rendered him valuable service through many years, and as he had once before conveyed the whole property to her, which she had reconveyed at his request, she had a reasonable right to expect that, in making another deed to her, he would do the same as he had done before, and if she had gone beyond any solicitation appearing in the testimony, she would have been fully justified in doing so, and within the limit allowed by the law.

Upon a review of the whole of the testimony, we quite agree with the master and court below, in finding that Jeremiah Gardner was mentally competent to convey his property on June 19, 1887, that no fraud or imposition was practiced upon him in the procurement of the disputed conveyance, and that he was not influenced to execute it by any undue solicitation ; that the defendant, Ellen McConlogue, had rendered much valuable service to Gardner during a long period of time, which was duly recognized by him, and which constitutes a good consideration for the deed in controversy; that she was not disqualified from receiving the deed by any relation of trust or confidence to him; that there was a distinct and emphatic subsequent ratification of the deed, and an additional consideration then furnished in support of the deed by Mrs. McConlogue, and that there is no sufficient reason why a court of equity should interfere to set aside the deed in question. The report of the learned master in the court below is an extremely able, exhaustive and calmly judicial review of all the evidence in the case, and of the law applicable in the consideration of this class of cases, and we think the learned court below was entirely justified in its disposition of the exceptions to the report.

The decree of the court, below is affirmed, and appeal dismissed at the cost of the appellants.