
    DEED OF AGED GRANTOR SET ASIDE.
    Common Pleas Court of Butler County.
    Kate H. Wallace et al v. William Timberman et al.
    
    Decided, March 1, 1909.
    
      Deed — Grantor Suffering from Old Age — Acts 'Without Advice — Consideration Slightly Inadequate — Terms of Payment Extremely Liberal — Opportunities for Undue Influence — Decree Setting Deed Aside on Petition of Heirs — Costs Divided.
    
    Where it appears that a grantor was eighty-three years of age, and was suffering from senile dementia to an extent which incapaci- ■ tated him for the transaction of business in part if not altogether; that the price agreed upon for the farm which he sold was not fully adequate, and no money was paid down, and the purchase money notes were extended over a period of fifteen years at a rate of interest as low as four per cent;.; that the farm constituted all of the grantor’s property, and in selling it he acted without independent advice, and contrary to his intention as expressed but a short time previous; that there were opportunities for undue influence, and some testimony tending to show its exercise; that no security for the payment of the purchase money notes was given, except a mortgage on the farm- sold, and that if the sale was abrogated no loss would result to the grantee, unless he got the property for less than its real value, a decree granting the petition of the heirs to set the deed aside will be granted, but because of lack of evidence tending to show a deliberate design on the' part of the grantee to obtain an unfair advantage, the costs will be equally divided.
    
      Ed. H. Jones and M. 0. Burns, for plaintiffs.
    
      Andrews, Harlan & Andrews, for defendants.
    
      
      This case was appealed to the circuit court, and on April 23, 1909, that court set aside the deed, and assessed one-third of the costs against plaintiffs and two-thirds against defendants.
    
   Murphy, J.

Plaintiffs allege in their petition that they are the sole heirs at law of Franklin B. Hills, deceased, who died in Butler county, Ohio, on March 29, 1908; that said decedent had been for a long time prior to his death, and up to October 17, 1907, the owner of a tract of land in Oxford township, Butler county, Ohio, containing about one hundred and twenty acres; that on October 17, 1907, he conveyed this tract of land to the defendant, ‘William Timberman, for the sum of $12,000, payable in annual installments, of $800 each, for a period of fifteen years; the first note payable on January 1, 1909, and all the notes bearing interest at the rate of four per cent, from January 1, 1908.

Plaintiffs allege that at the timé the deed was executed, and for a long time prior thereto, the decedent, owing to disease and old age — he then being eighty-three years old — was of unsound mind and incapable of transacting and understanding the nature of the transaction; that the price paid for the farm was inadequate and insufficient, and, taking into consideration the terms of payment, was grossly inadequate and insufficient; that the decedent was a member of the household of the defendants, and that they fraudulently took-advantage of the close and intimate relationship existing, the weak mental condition in which said decedent was, and used undue influence and persuasion to procure him to execute the deed.

And because of these facts plaintiffs ask to have the deed set aside.

The defendants have answered, and admit the relationship of the plaintiffs to the decedent, the purchase of the farm, at the price and upon terms stated in the petition; but deny all the other material allegations of the petition. That is, they deny that the decedent was incapacitated to make a deed by reason of his mental condition; that the price paid for the farm was inadequate; and that any undue influence was exerted upon the decedent. They further aver that as a part of the consideration, in addition to the $12,000, an unexpired lease-which the defendant, William Timberman, had for said farm was canceled, and the defendants further agreed to board, lodge, nurse, care for, and provide medical attention for the decedent during his life, at the rate of $2.75 per week.

Several days were occupied in hearing the testimony relative to the averments relied upon in the petition to set aside this deed.

The plaintiffs, Mrs. Sadler and Mrs. Wallace, and the husband of Mrs, Sadler, testified that for some time prior to his death, and particularly during the, years of 1906 and 1907, the decedent was restless and nervous; was less inclined to talk than in former years; talked to himself in day time and at night in his bed room; would not leave the house for fear he would get lost; threatened to kill himself; said that he was no longér of any use; would forget people; had formerly been a great reader, but finally read but little, and could not retain in his mind what he had read; and that in his .walk he shuffled his feet. And instances were given to sustain these facts. Other witnesses were called to support these alleged facts.

The evidence further shows that the decedent visited Mrs. Sadler in the months of April and May of 1907, at Pittsburg, and that his condition was such at the time he returned that his family thought he was not capable of returning home alone, as he had done upon all former visits, and when he did return home they sent the daughter of Mrs. Sadler to accompany him, on account of his physical and mental condition.

This is the substance of the testimony which they offered to shoAV that the decedent was of “unsound mind, and to such an extent as to be incapable of transacting business, and to 'show that he was incapable of understanding the transaction when he executed it,” — the deed.

In the years of 1905 and 1906, and in April and May of 1907, the decedent visited his daughter, Mrs. Sadler, one of the plaintiffs, at Pittsburg. During each visit he was treated by Dr. Wynkoop, whose deposition is in evidence in this ease.

The doctor says, in 1905, by frequent talks with him, he came to the conclusion that the decedent had “illusions, delusions and hallucinations — a decided mental failure.” That he was suffering from senile dementia; that his disease was indicated by talks that were rambling, sometimes violent and incoherent, by his inability to remember from day to day, by his inability to remember him&wkey;the doctor; by his muttering to himself, by his talking to imaginary objects, by his seeing objects that‘did not exist, and hearing noises that did not exist. That his mental derangement had progressed in 1906, and was much worse in 1907..

Dr. Francis treated him in his last illness, commencing about February 1, 1908. lie said that the decedent was suffering with paresis, which he said is practically the same as senile dementia; that he was feeble, and his mind was weak; that his general condition was senility, which he said, is a failure of strength, both bodily and mentally. That his disease was far advanced, and probably existed in October, 1907.

Dr. Moore, of Oxford, testified that he knew the decedent for a year before his death; that he gave him some medicine at his office in October, 1907; that he did not notice paresis, or any form of insanity; that he had no delusions, illusions or hallucinations.

Such is the medical testimony in this case, and upon which the court must rely to a great extent as to what was the mental condition of the decedent when this deed was made.

Most of the other witnesses’ testimony in this case upon this point is not of great value, because they did not see. the decedent often.enough to form a conclusion that would be reliable. Most of them were without the peculiar qualifications to determine such a question, and their opinions are made up without sufficient important facts from which to draw a correct or intelligent conclusion. Outside of the parties to this suit and some relatives the contact which the witnesses had with the decedent during the last year or two of liis life had been meager, or at least had been of short duration — an occasional meeting, or chatting for a few minutes — so that their opinions were not based upon sufficiently strong foundations to give to them such weight as would overcome the medical testimony.'

The coixrt is inclined to think from the testimony of Dr. Wyn-koop, supported — in a measure at least — by Dr. Francis, together with the other evidence in the case, that Franklin B. Hills, if not mentally incompetent to make a deed, was mentally weak at the time the deed was made.

Altogether Dr. Moore says he was of sound mind, and in this he disagrees with Dr. Wynkoop and Dr. Francis, he had only seen him a few times during the last year of his life, and then only for a few minutes upon each occasion, consequently he did not have the opportunity to observe and investigate, as did Dr. Wynkoop a few months before October, and as Dr. Francis had a few months after October, 1907,

The court is led to the conclusion that, if he was suffering from senile dementia or paresis in the late spring of 1907, and on February 1, 1908, he certainly was suffering with the same disease between those two periods.

Was the price paid either an inadequate consideration, or a grossly inadequate consideration for the farm, as claimed by the petition ?

The witnesses for the plaintiffs testified that the farm was worth from $100 to $125 an acre; only one man put it as high as $125 an acre. The witnesses for the defendants place the value of the farm at from $80 to $100 an acre. One witness only putting it as low as $80 an acre; all the rest being from $90 to $100 per acre.

The court has drawn the conclusion, from the evidence that has been submitted in this case, that the farm was probably worth $100 per acre, upon reasonable terms of payment; and that reasonable terms of payment, as testified to by one witness in particular in this case — a witness for the defendants, George C. Munns — is one-third or one-fourth cash, and the balance in payments of two, three, four or five years. Consequently the court is of the opinion that had this farm been sold upon reasonable terms of payment, the price would have been entirely adequate.

But what is the price of this farm upon the terms of payment?

There has been an attempt in this case to show that four per cent, interest, and the terms of payment in this case, are reasonable and not unusual. But the cpurt is of the opinion that the defendants have failed to show this to be true.

This farm was sold for its fair value, so far as the amount is concerned, but there was not a dollar paid in money, or to be paid until almost fifteen months after the deed was executed, and the payments were strung out for a period of fifteen years thereafter.

If an attempt was made to negotiate these notes, so as to make them draw six per cent, interest, then the farm would have sold for about $10,700; at five and a half per cent, interest, at about $11,000; and at five per cent, interest, about $11,300. So that upon a cash basis, if these notes could be negotiated — which the court doubts — the farm sold at from about $700 to $1,300 less than what appears upon its face; and the court is inclined to believe the figure is nearer $10,700 than it is $11,300, that is, that it sold for nearer $1,300 less than what it w.as worth than $700 less than it was worth. It does not seem to the court that such a sale upon such terms of payment was a reasonable or a usual manner of making a farm sale.

■ Again, the court is confirmed in this opinion to a certain extent — of course it is not controlling — that this price is inadequate, for the defendant, Mr. Timberman, must think, that he had a bargain, or he would be willing to cancel the deed, for the reason that he has a lease for the farm; he has not paid a dollar upon it, unless it was paid after the trial of this case — and his status after the cancellation of the deed would be the same as it was before the deed was executed. In other words, he could lose nothing unless he got the farm for less than it is worth.

Was there any undue influence? There is no direct evidence to sustain such contention. If there was undue influence it must be gathered from the circumstances.

These defendants and the decedent were living together as one family at the time this deed was made, and had been so living for about a year and a half; and while this is not sufficient to raise the presumption that any undue influence was exerted, yet no one except the parties themselves can tell what transpired, what influence may have been exerted during this period of time. The opportunities to attempt to control were present, if the defendants desired to make the effort to control the decedent.

While the evidence in the case shows there may have been a time when the decedent thought of selling the farm, yet it still further shows that he said to his son-in-law, in May, 1907, that he would never sell it. In August, 1907, he told Mr. Eugene Ringwood and his wife that he would not sell it, he wánted it for the,girls — that is, the plaintiffs in this case. He so stated to John Taylor in the spring of 1907; and to John Vanness in August, 1907, who wanted to buy the farm. He told him it was not fo.r sale; that he wanted it for his girls. .So that the court:believes as late as August, 1907 — itwo months before the deed 'was made, his’ mind was made up not to sell the farm.'

This is reinforeed by the fact that the decedent, in the summer •of 1907, spent at least $237 in the way of permanent repairs— roofing the house, painting, etc. He would not likely have done this had he intended to Sell the farm — at least without any competitive offers, or without letting prospective purchasers know that it was for sale. Tet he does sell it in October, 1907, upon unusu'al terms, and without any independent advice — without any advice from friends, or from his daughters, who are deeply interested. This, in the opinion of the court, is significant.

However, the court is not unmindful of the conversation that decedent had, in the latter part of October, within a few days after the sale of the farm, with his daughter, Mrs. Wallace, at her home in this city; and were it not for this conversation, the court does not believe there would be much doubt in this ease but what the decedent did not thoroughly -understand at the time he executed the deed — that he did not thoroughly understand what he was doing. Yet this conversation puts some doubt upon that question in the mind of the court. In that conversation he told Mrs. Wallace that he had sold the farm to Mr. Timberman for $12,000; that he got no cash; that he was getting old, and could not attend to his business; that he ought to settle things. But upon further conversation, with the decedent, he could not tell her what were the terms of the sale, how many notes he had gotten, or — to use the expression of the witness as to what he said — he could not tell how “they were made up.” He had sold his farm, he knew that, he knew the price he had gotten for it, yet he could not tell the terms of payment; and the terms of payment cut' a great figure in this transaction.

Consequently, the court is led to believe that he did not thoroughly or fully understand the transaction that he .entered into at the time he executed this deed.

The evidence -further shows that the farm was rented for a period of five years, beginning March 1, 1906, to the purchaser, upon terms that would cause decedent very little trouble to care for his part of the products, as the corn and wheat to be delivered to decedent were to be delivered in the market.

The evidence also shows during the summer of 1907 • decedent loaned William Timberman $274, at 3 per cent, interest, without security. All of which would indicate to the court that he either desired to do some favors for the defendants, or that he was really weak mentally, that he could not properly protect his own interests; and there is no evidence sufficient to convince the court that he was trying to favor the defendants at his own expense, or, possibly, at the expense of his daughters.

The court has gone over what it considers the material portion of the evidence that was submitted in the trial of this case, and the conclusions of fact that it has drawn from the evidence.

There is an averment in the answer in this case, that besides the consideration which was paid for the farm, the lease was to be canceled, but the court can not see how that could be of much consequence; and that the defendants agreed to board, lodge, nurse, care for, and provide medical attention for the defendant during his life, at the rate of $2.75 per week.

The only evidence upon this point is the evidence of -the Tim-bermans alone; no other evidence was offered to support this claim. Although I believe from the evidence that there is- no question but what he was paying $2.75 per week for his board— whether he was to -get anything else for the $2.75 per week that he was paying to the Timbermans, there is nothing in the evidence in this case to show except the evidence of the Timbermans alone.

Now, applying these facts to the law, what should be done in this case?

It is not that kind of a case where a court can point to authorities to sustain its decision, for -the reason that in cases of this kind there is not to be found two instances where the facts and circumstances are alike; each case must be decided upon its own peculiar facts. Many cases, have been cited by counsel in this ease in behalf of their respective contentions, and the court-will have to apply, in so far as it can, the principles laid down by those cases.

The court recognizes the rule that mere mental weakness is not sufficient to invalidate a deed, but that it must be such weakness or derangement of the' mental powers as to make the party executing the deed “wholly unable to enter into a business transaction which would require him to look to his own interests and to deal on equal terms with persons of ordinary intellectual vigor. ’ ’

In the case of Kime v. Addlesperger, 2 C. C.—N. S., 270, the court, in the second syllabus, says:

“The proper test of mental capacity on the part of one executing such a deed is his relations to those who are the natural objects of his bounty, and his capacity to understand to a reasonable degree the condition of his property and the nature and effect of what he is doing. ’ ’

But the deed in that ease was of a testamentary nature, and the court so treated it, saying:

“We further recognize the rule, that to make a contract requires more ability than to make a will, for the reason, in a contract there are two parties and their interests are antagonistic ; hence the rule is that it requires more capacity to make a contract than a will. ”

So that the test in this case would be more severe; a stronger mental capacity must be shown than as indicated in the case cited, the syllabus of which was just read.

In the case of Baugh v. Buckles, 2 C. C. Rep., 498, the syllabus reads as follows:

“While, as a general rule, fraud and undue influence must be proved by him who alleges them, they may, in a suit to cancel a deed upon the ground of their intervention, be inferred from the circumstances that the grantor was partially incapacitated by mental infirmity, or was subject to the controlling influence of the grantee, if it appear that the deed was without valuable consideration, or that the grantee acquired an undue advantage by its execution.
“Such circumstances cast upon the grantee the duty of showing, affirmatively, that the grantor clearly understood the nature and effect of the transaction, and voluntarily executed the instrument. ’ ’

This is followed in the case of Kime v. Addlesperger, above cited, where the court says (p. 276):

“As a general rule fraud and undue influence must be proved by bim who alleges them, but they may, in certain cases, be inferred from circumstances, .as in the execution of a deed where the grantor was partially incapacitated by mental infirmity, or was subject to the controlling influence of the grantee, if it appears that the deed was without valuable consideration, or that the grantee acquired an undue advantage by its execution. Under such circumstances the burden is upon the grantee to show affirmatively that the grantor clearly understood the nature and effect of the transaction, and voluntarily executed the instrument. ’ ’

This case shows that the decedent was at least partially incapacitated, if not more, and that the defendant acquired an undue advantage by the terms of the sale; that the price paid by reason thereof was not adequate, hence the burden shifted to the defendants to show that the decedent clearly understood the nature of the transaction, and that he voluntarily entered into the transaction.

In the case of Allore v. Jewell, 94 U. S., 506, which is a case that is largely quoted in cases of this kind, the court says:

“.Whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside. ’ ’

But that case does not apply altogether to the case at bar, for the reason that in that case the consideration paid was wholly inadequate, and in this case the court does not find that the consideration was grossly inadequate.

In the case of Tracey v. Sacket, 1 O. S., p. 54, the court says:

“The rule to be collected from all authorities, I take to be this: Where there is imbecility or weakness of mind arising from old age, sickness, intemperance, or other cause, and plain inadequacy of consideration, or where there is weakness of mind, and circumstances of undue influence and advantage, in either case, a contract may be set aside in equity.”

Now, the first portion of this paragraph of the court’s opinion does not apply in this case — not strongly, at least — for it may be a question whether there is a plain inadequacy of consideration in this case; but the latter part of the paragraph does apply. There is no question but that there was weakness of mind — because of old age, disease, and circumstances of undue influence and advantage.

In a late case (9 Idaho, 629), the court says:

. “Where inadequacy of consideration is shown, or imbecility or weakness of mind arising from old age, sickness or intemperance, or other cause, equity will set aside the transaction as the suit of the injured party. ’ ’

This case is somewhat stronger than the other cases that the court has just cited.

The court being of the opinion in this case that the testimony shows the decedent to have been mentally weak, at least, if not totally incapacitated by reason of disease and old age, that the price paid for the farm was not fully adequate, that the deed was executed without independent advice, particularly without any advice or knowledge of the daughters, with whom the decedent was on friendly terms, the fact that.a short time before the deed was executed his mind was made up to keep the farm for his daughters, the circumstances herein related tending to show undue influence, which the defendants have not overcome by the burden of proof, the fact that the defendants had obtained all the .property of the decedent, or practically all, without adequate security, the fact that the defendant, William Timberman, had not paid a dollar upon the purchase price of this farm, and would not be compelled to pay a dollar upon the purchase price until after he had taken possession of the farm, and for fifteen months after the execution of the deed, that the payments extended for a period of fifteen years, payable in sums of $800 a year, that the rate of interest was four per cent, much below the usual and ordinary rate of interest in the sale of farms, that if the deed should be set aside no loss would result to the defendants, for the reason that there could be no loss unless the farm was obtained- for less than it was worth, the opinion of the court is, if decedent was not totally incapacitated, his mind was so weak he did not comprehend or thoroughly understand the transaction he entered into, and that this deed must be set aside and held for naught.

Of course, the court is not unmindful of the fact that defendants offered the testimony of the scrivener who wrote the deed; that the decedent told what the terms of the transaction were; but the court also takes into consideration that it was the defendant, William Timberman, who engaged the scrivener to prepare the deed and mortgage; that the decedent lived with Mr. Timberman, as a member of his household, that he. spent the morning with the decedent, in Oxford, before the scrivener came to his office. The court takes into consideration these facts— what influence they might possibly have had upon the decedent to get him to execute the deed.

Therefore, the court has come to the conclusion — although there were some questions that raised doubt in the mind of the court as to what it ought to do — but considering that no injustice can be done in this case by the cancellation of the deed, 'because the parties would be placed in the exact situation they were -before the deed was executed, and considering there can be no loss to the defendants in this ease, unless the farm was obtained for less than it was actually worth, anu if he obtained it, under all the circumstances, for less than it was worth, the deed ought to be set aside — the deed should be set aside, and such will be the decree of the court.

As the evidence does not plainly show -that William Timber-man designedly pursued a policy to obtain an undue advantage, or to exercise undue influence, the court is of the opinion that perhaps the costs in this case ought to be divided, and will direct that each party pay their own costs.  