Bogie v. Bogie , 37 Wis. 373 ( 1875 )

Lyon, J.

It satisfactorily appears from the evidence, that when Mrs. Bogie signed the deed in question, she was very dangerously ill, apparently near death; that she was suffering intense pain, and was greatly prostrated in body and mind ; and that she was induced to sign the deed by the importunities of those about her. Indeed, the evidence leaves grave doubts in our minds whether she had any intelligent understanding of her act, when, with the aid of the bystanders, she affixed her mark to the deed as a signature.

"When the validity of a deed executed under such circumstances is called in question, the courts will examine the circumstances of the alleged execution thereof with jealous scrutiny, and, if any essential element of a valid deed be wanting, will not hesitate to set the instrument aside or to. refuse to enforce it.

The circuit court found that there had been no delivery of the deed to the defendant. Reaffirming all that was said in the former case (85 Wis., 659), by the chief justice, on the subject of delivery, and applying to this case the principles there laid down, we are of the opinion that this finding of the circuit court is correct. The testimony has been carefully examined, and it fails entirely to satisfy us that Mrs. Bogie, either by act or word, directed, assented to, or contemplated an immediate delivery of the deed in question, even if her mental condition was such that she could give an assent thereto which would bind her. The only testimony of any importance tending to prove a delivery, is that of Mr. Curtis, who says that he explained to Mrs. Bogie “ that it was a warranty deed, and that John was to have it then.” But there is no proof that she made any reply or gave any assent to the remark, and we are well satisfied that she did not understand it. Mrs. Bogie testified that she had no recollection of anything that transpired on the day the deed was signed ; and Mr. Curtis testifies that he had no directions to deliver the deed.

But it will serve no useful purpose to state or comment upon the testimony at length. Its character is indicated in the other case before mentioned ; and it is better for some of the actors in the transactions under consideration, that but little be said about it here or elsewhere.

It only remains to add that we find nothing in the proofs which estops Mrs. Bogie to assert the nondelivery of the deed.

By the Court. — Judgment affirmed.