Carter v. Carter , 82 Va. 624 ( 1886 )

Richardson, J.,

having stated the case, delivered the opinion of the court.

The appellants assign for error first the action of the circuit court in overruling the demurrer. For ground of demurrer they submit that there is nothing on the face of the bill, either in its original form or as amended, to show any right in the complainant to bring or to maintain this suit.

It is undeniably a fundamental rule that every bill in equity must clearly show on its face that the plaintiff is entitled ’to the relief demanded, or such an interest in the subject matter as clothes him with a right to institute and maintain a suit concerning it. 1 Danl. Chy. Pr. 314; 1. Barton’s Chy. Pr. 349-350.

In this case, it is too obvious for argument that the original bill does not disclose any title or interest in the plaintiff upon which to found a right to bring or maintain this suit. The original bill seeks relief only against the deeds of 28th of August, 1880, which are filed as parts thereof. As to these it says: “Your orator will be content for the present to charge only that the two deeds of 28th August, 1880, were signed by Mrs. Carter under a mistake of fact; that they are not the deeds she intended to and thought that she was executing. As to how the alleged mistake on her part was brought about, he makes no charge at this time, and hopes that it will be unnecessary-to make it at all.”

Now, one of these deeds conveys “Palser’s Springs” to H. Heaton, in trust for the grantor for her life with remainder over to B. G. Carter or his children. The other conveys to B. G. Carter “Bellefield,” and all the personal property of every kind, including portraits, pictures, furniture, &c., now on said tract, which may belong to the estate of Geo. Carter, deceased, and form a part of the rest and residue thereof.” It will be observed that Mrs. Carter’s “right,title and interest” in “Palser’s Springs,” which, by her deed of 6th of March, 1883, she conveyed to the complainant, the deed for which be sets up in the original bill, was only an equitable interest for her own life in “ Palser’s Springs.” That interest she conveyed to the complainant, and it is not pretended that the defendants, or either of them, dispute his right thereto; and yet the prayer of the bill is that the deed to H. Heaton be annulled. There is no conflict or competition between that deed and the deed of March 6th, 1883—nor does the original bill claim that if the former were annulled, the grantee in the latter would be entitled to the fee-simple of “Palser’s Springs.”

Again, the will of the testator gave to Mrs. E. O. Carter “Bellefield,” and the personalty aforesaid, and much other property constituting the residuum of his estate, to be by her given to his two sons in such proportions as she might deem proper. The deed to B. G. Carter confines the grant of personalty to such as formed part of that residuum, and does not pretend to grant any part of the personalty which, with “ Oat-land’s,” was bequeathed to the complainant. Besides, the original bill does not set up any title in the complainant to any part of the personalty conveyed by Mrs. Carter, with “Belle-field,” to B. G. Carter. And yet the prayer is that the latter deed be corrected as to the portraits, &c. There can be no pretense, therefore, that the original bill was not open to demurrer.

The amended bill repeats the allegations of the original, and adds the circumstances of the interview between Mrs. E. O. Carter with her then counsel and others on the 30th and 31st of May, 1883, and the execution and delivery of the deed of 31st of May, 1883, and other things alleged to have happened since the filing of the original bill, and distinctly charges that the deeds of 28th of August, 1880, and the deed óf 26th December, 1882, were executed by Mrs. E. O. Carter without her knowing their contents, and when she was incapable of making such conveyances, and that they were obtained from her by her co-defendant, B. G. Carter, by misrepresentations and undue influence. And in addition to the prayer of the original bill, it prays that the deed of 26th December, 1882, be annulled. The several deeds are made part of this bill.

As respects the deed to H. Heaton, trustee, and the deed to B. G. Carter for “Bellefield,” and the personalty, &c., the amended bill adds nothing to the allegations of the original bill, and as to those deeds, it makes no better case than does ■the original.

It may be true that it alleges grounds on which, if established by proof, a court of equity would annul those deeds, and that of 26th of December, 1882, likewise, at the suit of Mrs. E. O. Carter; but she has brought no suit to that end. It may also be true that had she been dead when this suit was brought, and the complainant had asserted his claims to the property conveyed by those deeds, either as her devisee or as her heir, the court might have entertained his suit, and, upon sufficient proof, have granted him relief against those deeds. Kerr on Frauds and Mistake, p. 371. But, under any circumstances, he would have to allege expressly and distinctly his claim and title to the subject matter in controversy.

As to the deeds of August, 1880, the insufficiency of the amended bill is readily demonstrated by what has been said in regard to the original bill.

It remains to consider its sufficiency as to the deed of 26th December, 1882.

The bill avers that by her deed of 31st May, 1883, Mrs. E. O. Carter conveyed to George Carter the “Moorland” tract, after she had conveyed the same to his brother, B. G. Carter. But it also avers that the prior deed to B. G. Carter was made by her under a mistake of fact, when she was mentally incapable, and under the grantee’s undue influence, and was procured by him by fraud, and prays to have it annulled. If it were annulled, then the later deed to the complainants would be effectual, and vest in him a good title to “ Moorland.” This last, and, it would seem, essential averment, the amended bill does not contain. The fact of the two competitive conveyances by the same grantor of the same property would, were the last grantee a grantee for value, undoubtedly make a proper case for equity jurisdiction, if suitable averments were made. See Warren v. Dailey, 80 Va. 512.

We are, therefore, of opinion that upon the case made by the bill the complainant was not entitled to the relief asked for, or to any relief, and that the circuit court erred in its said decree of January, 1884, in overruling the said demurrers, when the same should have been sustained, and the bill dismissed.

Here, this case would ordinarily stop, but both parties have expressed an earnest desire for an expression of opinion on the merits of the controversy, and we think it best to do so in order to put at rest this unfortunate bitter family strife, in which one brother is arrayed against another brother and the mother of both. The contest has fieen urged, not only with unusual acrimony, but has, unfortunately, been characterized by personal bitterness and strife even between counsel. But this court cannot be made the arena for the arbitrament of such matters. We, therefore, turn away -from them to the principles which must dictate our conclusions.

The initial inquiry upon the merits is, whether the circuit court erred in directing the issues of fact raised by the pleadings to be tried and determined by a jury, instead of itself deciding the issues thus raised upon the pleadings and proofs in the record, and, as contended for the appellants, dismissing the bill with costs to the defendants.

First, then, have the defendants below, the appellants, the right to be here on appeal from the decree of the court below directing the issue? The legal discretion rests with the chancellor to direct, or to refuse to direct, an issue to be tried by a jury, but his ruling on that question is liable to be reversed by . the appellate tribunal whenever the ruling impliedly involves a settlement of the principles of the cause. In the case at bar, by overruling the demurrer and directing the issue, the chancellor in effect decided that if the facts alleged be found to be true there should be a change of property from the defendant, B. G. Carter, to the complainant, George Carter. And so the principles of the cause were settled by the decree which entitles the plaintiff to appeal therefrom. Reed v. Cline, 9 Gratt. 136; Wise v. Lamb, ib., 302; Beverly v. Waldron, 20 Gratt. 149, 154; Elder v. Harris, 75 Va. 68, 72; Code 1873, chap. 178, sec. 2.

Now, in what aspect is the case presented in the light of the pleadings and proofs? We have seen what the bill and amended bill was. Conceding, for the sake of the argument, that it states a case proper for relief, if upheld by sufficient proof, how then? B. G. Carter, in his separate answer, in direct response to the allegations of the bill, denies every material averment, and traverses every charge of fraudulent procurement and of undue influence on his part toward the grantor in the execution by her of the contested deeds, and of mental incapacity, and of' mistake and ignorance on her part as to the contents of said deeds when she executed them.

The separate answer of H. Heaton, trustee, denies all knowledge on his part of the facts connected with the execution of the deed to him as trustee; and he disclaims any interest in the matter.

In her separate answer, Mrs. E. O. Carter says, among other things: “Respondent did heretofore make the three deeds referred to, to B. G. Carter, defendant, and they were duly recorded by said defendant, as he had plainly the right to do, and respondent hereby ratifies and confirms them, each and singular, as her voluntary acts, disposing of property which she, and she alone, had the legal and equitable right to dispose of, and the legal and equitable title to.”

Respondent further states that these conveyances to defendant, B. G. Carter, were made by reason of “the desire” and purpose on her part to make as equitable and just division of her property as was in her power, she having relinquished to George Carter, complainant, many years since, her life estate in the “Oatland” estate, a very valuable property, in addition to the real estate and stocks in Baltimore, devised for her life to her by the will of the late George Carter, of “ Oatland.”

Respondent denies emphatically any imputation of idiotcy, imbecility, or incompetency, either in 1880 or since, and is surprised that said complainant could regard her as capable of any connivance or collusion with said defendant, B. G. Carter, as charged, and repels with disdain all the allegations involving fraud, undue influence, &c., both as to herself and said defendant, B. G. Carter.

In respect to these contested deeds, such is the answer of Mrs. E. O. Carter who, as co-defendant with one son, is sued by another son and called upon to answer under oath, as to the charater of these transactions in respect to property absolutely hers to dispose of as she saw fit. No higher testimony as to her capacity to dispose of her own could be required than is afforded in the act of suing ¿er and calling upon her to answer under oath, even if we concede (as we do not) that the appellee, George Carter, had the right to bring and maintain this suit. The answer speaks for itself; it is full, direct, complete and overwhelming.

Attention may be called to a circumstance attempted to be invested with some significance in connection with Mrs. Carter’s answer, as evidence touching the question of her mental •condition. The notary who certified her affidavit to her answer, proceeded as if he were taking the acknowledgment of .a feme covert to a deed of conveyance—that is, by explaining the instrument and by privy examination, and certified that she fully undertood the instrument, had willingly executed it and did not wish to retract it. This signifies and illustrates only the emphasis which inexperienced officials are apt to give to their blunders. Afterwards, before another official, she made the usual affidavit, which was properly certified.

Such being the explicit and positive denials of these defendants, who are the principal ones, of every material averment of fraudulent procurement, undue influence, mistake of fact and mental incapacity, a critical examination of all the evidence adduced has been made in' order to ascertain whether the complainant in the court below, the appellee here, has succeeded in overcoming the weight of these responsive denials, and in establishing his positions, prima faciae at least, by his proofs. If he has not succeeded so far, then the issue should not have been directed, and the bill should have been dismissed.

In Beverley v. Waldron, supra, this court said: “ It seems to he the settled rule that in no case ought an issue to be ordered to enable a party to obtain evidence to make out his case; that when the allegations of the bill are positively denied by the answer, and the plaintiff fails to furnish two witnesses, or one witness and corroborating circumstances in support of his bill, it is wrong in the chancellor to order an issue; that no issue should be ordered until the plaintiff has thrown the burden of proof on the defendant; that until the onus is shifted and the case rendered doubtful by the conflicting evidence of the opposing parties, the defendant cannot be deprived by the order of the court for an issue, of his right to a decision by the court on the case made by the pleadings and evidence.”

Thus has the rule for the guidance of the chancellor in such cases, long been succinctly, clearly and correctly defined. There can be no difficulty in rightly applying the rule to the case in hand. It is alleged that when Mrs. E. O. Carter signed and acknowledged the two deeds of 28th of August, 1880, and the deed of 26th of December, 1882, she was incapable of executing such conveyances; that they are not the deeds she intended to execute; that she did not know their contents when she signed them; and that they were procured from her by false representations made to her by her son and co-defendant, B. G. Carter. We have seen how direct and emphatic her denial of each and every of these charges is, and how promptly she avouches her good faith by expressly ratifying these contested deeds.

Now, what two witnesses have testified to the contrary and in support of the bill ? Nay, what one witness and corroborating circumstances support the bill? What one witness alone does it? Certainly not Mrs. E. O. Carter’s niece, companion and secretary, Mrs. A. G. Fitzhugh. Not H. T. Frazier, the justice who certified her acknowledgment of the two deeds of August, 1880, Not Townsend Frazier, the justice who certified her acknowledgment of the deed of December, 1882. In truth, not one of the many witnesses who were examined, so testified, and the bill stands unsupported by witnesses or circumstances.

It is singularly inconsistent, yet true, that the appellee seeks to employ as evidence in support of his bill, a deed made by Mrs. E. O. Carter at a subsequent date conveying to him the same land which she had previously conveyed to B. G. Carter, and the recitals contained in the subsequent deed, and in a paper signed by her at the date of the subsequent deed, and her directions of March 9, 1883, to her then counsel to take steps to set aside the three contested deeds, and her subsequent unsworn hearsay declarations made out of court; which deed and paper, she swears, was delivered by. her to counsel to be kept subject to her future orders, and which she recalled before any action was taken upon them, or, at least, before she was aware that the deed had been delivered to the appellee, George Carter. And yet more strange, he denies that she possessed the requisite mental capacity in August, 1880, and in December, 1882, but accepts a deed from her in May, 1883, and relies on her unsworn hearsay statements made when she was ill in May, 1883, to invalidate her solemn acts of previous years; yet he offers no evidence of any improvement in her mental condition between those periods. It is too obvious for comment that such subsequent deed could not revoke the former ones, and that her subsequent statements and recitals could' not impeach those deeds, especially when taken in connection with the conspicuous fact that she stood in the court below, as she stands here, insisting on the validity of those prior deeds, and denouncing as invalid the subsequent deed. There has not been even an effort made to prove want of capacity in Mrs. Carter at any time.

The record contains absolutely no evidence that the contested deeds were made by Mrs. Carter under the undue influence of her son, B. G. Carter, but much to the contrary. Mrs. A. G. Fitzhugh, from her relations to Mrs. Carter, would have been privy to the exertion of such influence if it had existed. She-was examined as a witness for the complainant, and what does she say ? Question: “ State whether or not B. G. Carter could or did influence Mrs. E. O. Carter to conform to his wishes; and if so, state anything that occurred to lead you to think so ?” Answer: “I think she likes to gratify him in every way she can. If he influences her it is not in my presence.”

The influence to vitiate an act must amount to force and coercion, destroying free agency. It must not be the mere desire of gratifying the wishes of another; for that would be a very strong ground in support of the act in question. It must be proved that the act was procured by this coercion, by importunity which could not be resisted, and that the act was done merely for the sake of peace, so that the motive was tantamount to force or fear. Such is the definition of “ undue influence,” which has always obtained in this court. Simmerman v. Songer, 29 Gratt. 9; Parramore v. Taylor, 11 Gratt. 220; Greer v. Greer, 9 Gratt. 330; Jarman on Wills, 29. It is also alleged that B. G. Carter procured the execution of the contested deeds by false representations. What the representations were the bill does not state; no witness mentions any.

Lastly, another charge is that Mrs. E. O. Carter made these deeds under a mistake of fact, supposing she was making some other conveyances instead of these. It is mere form to notice this. The whole record may be searched again and again, but it will not reveal a syllable to sustain the charge. The evidence is excessively voluminous and much of it entirely irrelevant. It would be tedious in the extreme and entirely profitless to refer to it in detail. Suffice it to say, that whilst the appellee’s witnesses fail to support the material allegations of the bill, those of the appellants go very far towards sustaining the denials of the answers. And a prominent and important fact gleaned from the record is that all the witnesses concur in exhibiting respect for Mrs. E. O. Carter’s strong character and unusual intelligence, which, though diminished by the physical infirmities of her great old age, had not been impaired in force of will or clearness of judgment. As executrix of her husband’s will, she successfully administered his extensive estates in difficult times; and during her long widowhood she prudently managed her own large private fortune. After making equal, or at least, very considerable provisions for the appellee, George Carter, the property she saw fit to. bestow upon her son, Benjamin, who had been less fortunate than his brother, George, in managing and retaining his patrimony, was her own property and absolutely at her own disposal, unfettered in any way. She gave it to him, she says in her answer, voluntarily, and she confirms the gift. And whatever incorrect, but perhaps, in a woman and a mother in dealing with her children, natural notions she may at times have entertained as to her right to change her mind and revoke the disposition she had made of her property, and to reclaim gifts already consummated by her deeds; and whatever vacillations she may have felt, and now and then evinced by her words and acts, owing to causes needless now to enquire into, in regard to the division of her property between her two sons, her only children, who living on the border had become comparatively poor by the results of the war, yet it is not to be gainsaid that the deeds to B. G. Carter are conveyances of property, which she was entitled to dispose of at her pleasure, and conveyances, which, so far as the truth can be ascertained from the record, were executed by her knowingly and freely, and having been so executed, are unimpeachable, even at her own suit, had she desired to invalidate them, and which» certainly cannot be invalidated at the suit of the appellee, George Carter, on the showing made by him in the record in this cause.

We are, therefore, of opinion that the circuit court erred in directing-that the issues of fact raised by the pleadings and proofs in the canse, should be tried and determined by a jury, and in not itself deciding those issues upon said pleadings and proofs, and dismissing the complainant’s bill with costs. The said decrees of January, 1884, and October of the same year must be reversed and annulled, and a decree entered here dismissing said bill with costs to the appellants.

Decrees reversed.