Bumgardner v. Corey , 124 W. Va. 373 ( 1942 )

I did not concur with the majority of the Court in the original decision of this case, and would now grant a rehearing.

The plaintiff based her bill on the two conventional grounds of incompetency of her ward and of duress leading to the execution of the deed to the defendant Corey. By far the greater part of the testimony for both the plaintiff and the defendant is on the question of the mental competency of the plaintiff's ward Rollins. The trial chancellor found specifically that, although his mind was shown to be sub-normal, the evidence failed to prove him to be so defective mentally as to justify setting aside the deed in question on that ground alone. With this decision of the trial court the members of this Court are in unanimous agreement. As to the alleged duress, the court below held that this charge was proved, but that it was exerted exclusively by the broker whom Rollins had employed and certain of his pretended friends, and that Corey, the grantee, had no connection therewith. Therefore, restoration of the property from Corey to Rollins was denied. In this I believe the trial chancellor was correct.

Corey's connection with the duress was sought to be established by what his attorney had said and done at the time of the closing of the transaction and by what Corey himself then knew, or, by the exercise of the diligence of an ordinarily prudent man, could have ascertained. The court below, and this court as well, fully exonerate the attorney in question. Hence, the plaintiff's case must stand wholly on what Corey knew or should have known of the duress under which Rollins acted.

It is stipulated that the wife of a brother of Rollins would have testified that upon the occasion of Corey's visit to the farm for the purpose of examining it, in company with the broker undertaking to sell for Rollins, and another, she told them "that they had better see his sisters, Mrs. Rena Bumgardner and Mrs. Anna Mathews, before buying the property since they were taking care of him (Rollins) and that she had heard his mind was not right; that one of the men, whom she believes to have been Corey, said he would not have the land without a court deed; * * *." But this is totally denied by Corey and the two men with him, and, even if admitted to be true, went only to the claim that Rollins was incompetent, which we have found to be ill-founded.

The only other compromising knowledge charged against Corey is from his own mouth. He testified as follows:

"Q. In your opinion did he understand this transaction that he was entering into with you?

"A. Yes, sir. The fact of the matter almost I was afraid to buy it and he come down when I took that paper to show Mr. Barnhart — they all come down with me. He said O. K., and I didn't see nothing wrong with him at all, just like anybody else.

"Q. Was Delbert Pauley along with him?

"A. Yes, Delbert Pauley and Mr. Harrison were together — I mean Delbert and Mr. Rollins."

There is not another word in the evidence by which it is claimed that any guilty knowledge in Corey is shown. There is no dispute that he never had seen Rollins before. There is no claim in the evidence that he personally was guilty of any duress, or that he had any intimation that duress was being exercised by anybody. The plaintiff's whole case rested upon these words of Corey, "The fact of the matter almost I was afraid to buy it". Therefore, this sentence must be weighed. Corey was testifying about the execution and delivery of the deed. Was he afraid of the incapacity of Rollins? If so, his fear was unfounded. Was he suspicious of duress? There is not the slightest suggestion in the record that he had any part in, or knowledge of the duress which we have found, or of any fact or circumstance which would, even to the most prudent man, indicate that Rollins was being coerced. Then why did he hesitate? The context gives a perfect answer. The evidence shows that there had been a sharp disagreement between the lawyers representing Rollins and Corey, respectively, about the form of the deed. That prepared by the lawyer acting for Corey had been rejected by the lawyer for Rollins, who had prepared another. Then Corey says, "I took that paper to show Mr. Barnhart — they (Rollins and Pauley) all come down with me. He (Barnhart) said O. K.," and that he, Corey, then accepted the deed, paid the cash, and executed the notes. His hesitancy would seem to have arisen solely over the controversy about the form of the deed, but whether this is the correct construction of his own language or not, the ambiguous words "almost I was afraid to buy it", are too frail a basis for setting aside the deed. Deeds are not set aside on suspicion alone, or on ambiguous expressions in the testimony.

The other facts in the evidence do not strengthen plaintiff's case. There was no duress when Rollins offered his property for sale. If the offer by Rollins and the acceptance by Corey had been in writing, a court of equity would have enforced specifically the contract, instead of relieving against it. In executing the deed, Rollins had full advice and assistance of counsel. Further, the plaintiff showed no interest in the matter until gas developments made the land enormously valuable. When the deed was executed the nearest well was two and three-quarter miles distant, while at the time the suit was brought at least seven wells were completed within one-quarter to one and a half miles from the Rollins land and producing from thirteen to twenty million cubic feet of gas per day, and a well was being drilled on the tract itself. The plaintiff frankly says, "We decided that he had given too much away for nothing", in explanation of her activity in the matter. The adjudication of insanity was plainly a friendly proceeding and took place the day before this suit was brought. A court of equity may reasonably scrutinize vigilantly suits brought by the relatives of an alleged incompetent to set aside his deed, after there has been a great increase in the value of the property — a move too often for their own interests, rather than his.

It is also to be noted that Rollins was not called as a witness. He is potentially the most important witness in existence. True, he has been adjudged insane, but such adjudication does not render him incompetent as a witness. At most it is only prima facie evidence against his present capacity to testify. If he can recall and narrate past events with reasonable accuracy and retains an appreciation of the solemnity of the oath, he may give evidence. People v. Enright,256 Ill. 221, 99 N.E. 936, Ann. Cas. 1913 E, 318; City ofCovington v. O'Meara, 133 Ky. 762, 119 S.W. 187; Weeks v.State, 126 Md. 223, 94 A. 774; Barker v. Washburn, 200 N.Y. 280,93 N.E. 958, 34 L.R.A. (N.S.) 159, 14 Am. St. Rep. 640; Martin v. Hover, 60 Mont. 302,199 P. 694; Lanier v. Bryan, 184 N.C. 235, 114 S.E. 6, 26 A.L.R. 1488; Abbott v. Columbia Mills Co., 110 S.C. 298,96 S.E. 556; U.S. ex rel. Lo Pizzo v. Mathues (C.C.A.)36 F.2d 565; Conoway v. State, 171 Ga. 782, 156 S.E. 664;Missouri, etc., Ry. Co. v. Embrey, 168 Okla. 433,33 P.2d 481; Commonwealth v. Kosh, 305 Pa. 146,157 A. 479; In re Degnan, 122 N.J. Eq. 470, 194 A. 789; State v.Braden, 56 Ohio App. 19, 9 N.E.2d 999; Tubbs v. Hilliard,104 Colo. 164, 89 P.2d 535; Mettetal v. Hall, 288 Mich. 200,284 N.W. 698; People v. Ives, 17 Cal. 2d 459,110 P.2d 408.

Why did the plaintiff not call Rollins as a witness? In all probability because his evidence would not have tended to sustain the plaintiff's case. So far as the evidence shows, Rollins has never, by any word or act, indicated that he, in the end, was dissatisfied with the deed to Corey, or expressed any regret at his own action in executing that deed, or uttered any protest against any thing that was done leading to it. On the contrary, at the time of the institution of this suit, he had collected each month, for nineteen months, one of the twenty-five dollar purchase money notes which he had accepted for the conveyance. He was apparently perfectly content with the bargain, and his collection of these notes tends powerfully toward a ratification of the conveyance sought to be set aside. For a deed made under duress is not void but voidable only, and may be ratified. Schee v. McQuilken, 59 Ind. 269; Bodine v.Morgan, 37 N.J. Eq. 426; Brown v. Worthington,152 Mo. App. 351, 133 S.W. 93; Bushnell v. Loomis, 234 Mo. 371,137 S.W. 257, 6 L.R.A. (N.S.) 1029; Miller v. Minor Lbr. Co.,98 Mich. 163, 57 N.W. 101, 39 Am. St. Rep. 524; Rose v. Owen,42 Ind. App. 137, 85 N.E. 129; Willett v. Herrick, 258 Mass. 585,155 N.E. 589; Ferrari v. Escambia County B. of H.,24 Fla. 390, 5 So. 1; Miller v. Davis' Estate, 52 Colo. 485,122 P. 793; Augusta Motor Sales Co. v. King, 36 Ga. App. 541,137 S.E. 102; Kline v. Kline, 14 Ariz. 369, 128 P. 805; Hendricks v. Stark, 99 Fla. 277, 126 So. 293.

Nor does the subsequent adjudication of Rollins as insane affect this principle or conclusion. We have found him competent when the deed was made. He was found insane on June 13, 1939, but such adjudication raises no presumption of insanity prior to that date. "Insanity, when once established, is presumed to have continued; but there is no presumption of such status at a period antedating that on which it is established." Hentz v. Wallace's Admr., 153 Va. 437,150 S.E. 389. See also: Shores-Mueller Co. v. Palmer, 141 Ark. 64,216 S.W. 295; Nichols v. Pool, 47 N.C. 23; Rowan v. Hodges (Tex.Civ.App.), 175 S.W. 847; Avery v. Avery, 42 Cal. App. 100,183 P. 453; Lilly v. Waggoner, 27 Ill. 395; Huffaker v.Brammer, 193 Ky. 267, 235 S.W. 727; Small v. Champeny,102 Wis. 61, 78 N.W. 407.

In the face of these neutralizing and over-balancing facts and circumstances, the exceedingly narrow and frail case made out by the plaintiff, in my judgment, does not justify a decree in her favor.

Judge Kenna joins in this note.