
    *Morrison v. Morrison & als.
    January Term, 1876,
    Richmond.
    Deeds — Of Deaf and Dumb and Uneducated Person.— The deed of an uneducated deaf and dumb man acknowledged before a justice and recorded, sustained upon the proof that the deed was explained to him, and that he was believed to understand it; and there being no evidence of any fraud on the part of the grantee.
    This was a suit in equity in the Circuit court of Henry county, brought in November 1870 by Horace Morrison, and on his death revived in the name of his administrator and heirs, against Thomas J. Morrison, to set aside a deed executed by said Horace to said Thomas J. Morrison, on the ground that it had been procured by fraudulent means.
    Horace Morrison was a deaf mute, without any education; though he was a man of good sense, and could make himself understood by signs by persons well acquainted with him, and such persons could make themselves understood by him. At the time the deed was made he was about fifty years old, unmarried, and his habits were not good. He owned a small farm of about twenty acres, on which there was a good house in which he lived, and also some horses and stock and farming implements.
    The deed bears date the 10th of April 1867, and purports to be “in consideration of the natural love and affection which the said Horace Morrison has for his nephew, the said Thomas J. Morrison; and for the ^further consideration that the said Thomas J. Morrison has, since last September, lived with, and shall continue to live with, and support, the said Horace Morrison during the remainder of his life, the said Horace Morrison hath given, granted, &c., conveying the land and the personal property; and it concludes as follows: It being the intention of the said Horace Morrison to convey, and he does hereby convey, all of his property of every sort to the said Thomas J. Morrison, in consideration of the premises, and the said Thomas J. Morrison, on his part, in consideration of the said conveyance, agrees to live with and support comfortably the said Horace Morrison during the remainder of his life.
    This deed was retained in the hands of Horace Morrison from its date until September 28th, 1869, when it was executed by both the parties to it, and their acknowledgment of it was taken by John Miller, a justice of the county of Henry; and it was then recorded.
    The bill after stating plaintiff’s condition, states that he agreed that his nephew, Thomas J. Morrison, and his wife, should come to his house, reside with him. and assist in the management of his farm and domestic operations; and that in pursuance of said agreement his said nephew and wife did come to his house, and resided with him during parts of the year 1866 and 1867. But instead of being content with the share of the farm products, as he agreed to do, the said Thomas and his wife began soon to control and manage his farm as if it belonged to them. That plaintiff, in consequence of his condition and declining health, was willing to enter into an agreement with his said nephew, to the effect that he, the said Thomas J. and wife would aid him in the management of his affairs “'during his lifetime, and be kind and affectionate to him, that plaintiff would by will or deed convey to them his premises aforesaid, to take effect at his death, and communicated to them, his willingness to do so in the best manner he could.
    He further states that Thomas J. Morrison procured a deed to be written, and represented t.o the plaintiff that it was strictly in accordance with the aforesaid agreement, and desired plaintiff to sign it; but plaintiff did not then do so. That in consequence of a disagreement between him and his said' nephew and wife, they left his house, and his wife never returned' again; and the said Thomas J. came only occasionally, not to aid the plaintiff, but to control his property. That thus matters remained between them until the fall of 1869, when the said Thomas J. insisted upon plaintiff consummating the said proposition, by acknowledging said deed before a magistrate, in order that it might be recorded; and again represented to the plaintiff that the deed, which he had had prepared, only conveyed the said lands to him at plaintiff’s death; and did not in any way affect his title and dominion of the same during his life. He declares that he was wholly ignorant of the contents of the deed when he signed it; that Thomas J. Morrison wilfully and knowingly misrepresented the contents of the deed to the plaintiff, for the purpose of cheating and defrauding him out of his home and property. And he prays that the deed may be annulled and set aside as fraudulent and void; that said Thomas J. may be inhibited from selling or controlling the property, ánd may be required to account for all that he has disposed of; and for general relief.
    Thomas J. Morrison answered the bill. He denies positively every insinuation or allegation of fraud. *He says he had lived, before his marriage, on the most friendly terms with the plaintiff, who was his uncle; and after his marriage, the said Horace, without any importuning by the respondent, proposed that respondent and his wife should make his house their home as long as he should live, and promised and agreed that if respondent would comply with his wishes in this respect, he would execute a deed in fee simple to the respondent of all his property, both real and personal, with the condition, of course, that respondent and his wife would treat him kindly. That respondent accepted the proposition. That in view of respondent’s approaching marriage, the deed was prepared; and, after respondent’s marriage, he and his wife lived with plaintiff for six months, when his wife wished to return to her father’s at a distance of about two miles and a half, to which the said Horace kindly agreed, upon the condition that respondent should still attend to his business; and respondent visited the said Horace every day or so to enquire into his condition and provide for his wants.
    Respondent further says, that at the time he and his wife left the houste of the said Horace, the deed, though written, was in his possession and not executed. After it was executed and acknowledged, the said Horace insisted that respondent and his wife should take up their regular abode at his house, he having of his own accord and unsolicited delivered the said deed to the respondent; and they did return, and they remained there about six or eight months, and during that time did everything in their power to please the said Horace and promote his comfort. But very soon after their return, his habits became, from drunkenness, very disagreeable, so that respondent could not in justice to his family remain longer in the house; and in the ^spring of 1870 he left the house for the reason herein stated. But after he left, the said Horace often called on respondent to transact business for him, in the most friendly’ way, when he was sober. And respondent, whenever called on, without hesitation, supplied him with whatever money he wanted, kept • him well supplied with provisions of all kinds up to the period of his death, which occurred in May 1871.
    A number of witnesses were examined, by both plaintiffs and defendants. This evidence is referred to by Judge Anderson in his opinion. There is certainly no evidence of improper persuasion by Thomas J. Morrison; to induce Horace Morrison to execute the deed; and Miller, the justice who took the acknowledgment of the deed, and who was called by the plaintiff as a witness, states that the explanations of the deed were made to Horace Morrison by Thomas J. Morrison, Skelton Coleman, and G, J. Gray; that he seemed to acquiesce in the explanation very willingly, and willingly signed the deed. Witness was not at that time familiar with the sign language of said Horace Morrison; but he would not have certified to the acknowledgment of the deed unless he had believed he understood the nature of the instrument and willingly executed it. His belief was based upon the representations of his willingness to sign the deed, and upon the representations of the witnesses and bystanders as to his knowledge of its contents. Indeed, there is no evidence of his unwillingness to execute the deed; though there is some that he intended it to take effect at his death.
    The cause came on to be heard on the 8th of May 1872, when the court set aside the deed, and directed the defendant Thomas J. Morrison to surrender the land and other property. And thereupon Thomas J. *Morrison applied to this court for an appeal; which was allowed.
    James Alfred Jones, for the appellant.
    There was no counsel for the appellees.
   • Anderson J.

delivered the opinion of the court.

Horace Morrison and Thomas J. Morrison on the 28th day of September 1869 executed and acknowledged a deed before John Miller, a justice of the peace, to annul and set aside which, for fraud, the bill in this case was filed by the former. The answer positively denies any and every intimation and allegation of fraud. The decree of the Circuit court, in which the cause was pending, set aside and annulled the deed as fraudulent and void; from which decree the defendant appealed to this court.

I do not think that the charge of fraud is supported by the proofs. It is true that the plaintiff was both deaf and dumb, and was born so. But it appears from the testimony of both the plaintiff’s and the defendants’ witnesses, that he was capable of making known his thoughts and wishes by signs to those who were well acquainted with him, and of understanding their communications to himself with a most remarkable certainty. He was not educated, but the weight of testimony shows that he was a man of intelligence, and was remarkably cautious in his business transactions, and understood well his own interests. It is proved that an application was made at one time to the court of his county to appoint an agent to attend to his business, but the court refused, upon the ground that he was fully competent to attend to his matters *himself, The plaintiff’s witness, Silas Minter, says ‘ ‘if he was not drinking, I don’t think he would be apt to sign any paper without understanding fully the purport and meaning of the paper;” and it is not pretended that he was drinking at the time this deed was prepared or executed. It was written more than two years before he executed it, and remained in his possession, affording him opportunity of having it explained to him by his acquaintances, of which it is probable he availed himself. He sent for men to witness it, who undoubtedly explained it to him. Mr. Miller, the justice before whom it was acknowledged, testifies that Skelton Coleman and G. J. Gray were witnesses to the deed, though their names do not appear to be subscribed to the copy in the record. And he says that both of them in his presence explained it to him before he executed it, and acknowledged it before him. He certified his acknowledgment, and swears that he would not have certified it if he had not believed that he fully understood the nature of it. This witness was introduced by the plaintiff, and certainly had no leaning to the defendant. Mr. Coleman says he was present when the deed was made, and had no doubt that his mind was as good as it ever was, and that ‘ ‘he perfectly understood what he was doing. ”

There is evidence too that before he made the deed he had determined to give all his property to this nephew, and not to have it divided amongst his kin. One of the witnesses, William Watson, testifies that sometime before he made this deed, he told him that he intended to give all his property to Thomas J. Morrison, and proposed to him to go with him to Henry Courthouse, to get Mr. George D. Gravely to write the deed, which he declined to do, as it did not concern him. Andrew Morrison testifies, that he sent him after *the men to witness the deed, and told him a number of times that he intended to make the deed. At least eight or nine witnesses testified to the deed, and that they knew that it was his intention to give all his property to Thomas J. Morrison, his nephew. Indeed he does not himself deny that such was his purpose, or that he signed the deed in question. But he is made to say in his bill that he signed it under the misrepresentation of his said nephew, that it was not to take effect until after his death. How can we know that he alleged the facts or statements of the bill, or the foregoing charge against his nephew? If he could make himself understood as to those matters, he could have made known his wishes as to the disposal or conveyance of his property. And if he could understand the allegations made in the bill, so as to give them his sanction and to make it his bill, why could he not understand the explanations made to him by Coleman and Gray, and others, as to the purport and meaning of the deed, which he kept for two years, and then executed? or if he could be made to understand its contents after it was executed, why not before? The deposition .of Coleman was taken, and he testifies that he fully understood what he was doing. The grantor approved of it upon his explanation and Gray’s, and Thomas Morrison, and willingly signed it and acknowledged it before the magistrate, who being satisfied that he understood it, certified his acknowledgment. But his bill charges that Thomas J. Morrison misrepresented to him the purport and meaning of the deed. There is no proof in the record to support the allegation. The contrary is established by the evidence, as far as a negative can be proved. It is proved that Coleman and Gray both explained the deed to him, and the presumption is that they explained it to him *truthfully, and it is the fair inference, that Thomas Morrison explained it to him in the same way they did. Indeed the charge of misrepresenting the purport and meaning of the deed to him by Thomas Morrison cannot be maintained without convicting Coleman and Gray, who appear to be disinterested and unimpeached witnesses, of a false representation of its purport and meaning. I think the testimony proves that he was satisfied with the deed as it was represented to him by Coleman and Gray, and willingly signed it; and it negatives the charge of a false and fraudulent representation to him by his nephew. There is no testimony in the cause of either party in conflict with this view of the case, but much that has not been commented on to support it.

It seems that Thomas Morrison was not living with his uncle when the deed was executed, but two or three months after went to live with him, agreeably to his promise, and he and his wife remained with him some six or eight months. The unfortunate old man’s habits had become very-bad, and he was frequently drunk, or under the influence of liquor, and treated his nephew’s wife badly, so that her. husband could not, with any propriety, require her to remain there, and they moved away, as they were required to do by the plaintiff, and with his consent. But the proof is, that whilst they remained on the premises their treatment of the old man was uniformly kind and respectful, and that they clothed him and fed him well. And after they moved from the place he was visited by his nephew, and his wants inquired into and supplied by him, as far as he would allow him.

It is not pretended by Horace Morrison, or by those who may have been anxious to defeat the transfer of his little property to his nephew, that they might get *it themselves, that it was not his intention to give the whole of his property to the appellant. That seems to be conceded on all hands, and he objects to the deed only upon the ground that as represented to him, it in effect takes the property from him during his life and transfers it to his nephew. It is not clear that it may not be differently construed. It does not seem to contemplate any removal, of property, or transfer of possession during the life of the grantor. It is true the deed passes the title to the grantee in praesenti; but it can only be enjoyed by the grantee during the life of the grantor by his living with him. The grantor’s right to his home is recognized by the clause which requires the grantee to live with him during his life. Under the provisions of this deed I do not think it would have been in the power of the grantee to have ousted the grantor of his possession during his life. And I think he could only have enjoyed the use of the personal property during his life, whilst he lived with him. It seems to me that is implied in the grantee’s ' covenants. And to make it more effectual the deed is signed and sealed and acknowledged by him as well as by the grantor. Whether the deed will bear this construction in law ' or not, it might have been so understood by the parties, and such, as I understand the record, has been its practical working. When the grantee was forced to leave, by the conduct of the grantor in the maltreatment of his wife, he did not seek to disturb the grantor in his possession whilst he lived.

If the foregoing construction was given to the deed, as we have seen might have been fairly given to it, it is not really different in effect from what the plaintiff below alleged he understood it to be. And according to his understanding of the deed he enjoyed his property *in the main during his life; and there is nothing shown by this record to warrant a court of justice to divest the appellant of the title to the property after the death of the grantor, which, by his deed in his lifetime, which he deliberately, understandingly and willingly executed, he vested in the appellant.

I am of opinion therefore to reverse the decrees of the Circuit court, and to dismiss the plaintiff’s bill with costs.

Decree reversed.  