Conley v. Nailor

delivered the opinion of the court.

This was an appeal from a decree of the Supreme Court of the District of Columbia, by which certain deeds executed by

The pleadings and evidence showed the following facts: In the latter part of the year 1869 Allison Nailor, who was then about fifty-eight or fifty-nine years of age, was the owner of real estate in the City of Washington and in Montgomery County, Maryland, worth about $150,000, and was possessed of considerable personal estate. lie had resided in the city of Washington for about fifty years. He had for many years been engaged in buying and selling real estate, in keeping a livery stable, and in farming. He was shrewd and active in business, and had the capacity for making money and accumulating property. Much of the real estate which he owned in the city of Washington he let to be used for houses of ill-fame, and for sale by retail of spirituous liquors. For many years prior to 1869, and at least as early as the year 1854, he had led a dissolute and intemperate life. In 1869 he made the acquaintance of the defendant, who was then about twenty-one years of age. There is no averment or proof that prior to that time she was not a virtuous woman. In November or December of that year Nailor left his family and took up his residence with the defendant, and lived with her in concubinage until his death.

The deeds referred to in the bill were the following: The

The three other deeds were all dated and executed March 29th, and recorded early in April, 1878. One of these three deeds conveyed to the defendant certain other real estate in the city of Washington in trust for the sole and separate use of Mary Edna Nailor, who is described as the infant daughter of the grantor and grantee, upon trusts and uses similar to those contained in the first deed, and with a similar remainder to the defendant. The second of the three deeds conveyed to the defendant about one hundred and thirty acres of land in Montgomery County, Maryland, in trust for the benefit of the said Willie Earnest Nailor, upon trusts and uses similar to those contained in the deed of November 27, 1872, and with a similar remainder to the defendant. The last deed conveyed to the defendant, in fee simple, for her own use, about one hundred acres of land in Montgomery County, Maryland. The property conveyed by these four deeds was worth about $25,000. Willie Earnest Nailor died August 6, 1878, being nearly six years of age, and Mary Edna Nailor died August 8,1878, being nearly two years of age. Catharine Conley, therefore, claimed title in fee simple to all the property conveyed by the four deeds above mentioned. Allison Nailor died January 6, 1879.

The bill alleged three grounds for setting the deeds aside. The first was that the grantor wag “ demented and insane,”

There is a large mass of evidence in the record introduced to prove that, from a long course of dissolute and intemperate habits, Nailor had become insane and incapable of transacting business. On the other hand there is, in our judgment, a great preponderance of evidence to show that when he executed the deeds, though in feeble health, he was of sound mind and capable of intelligently executing and making the conveyances. It would serve no useful purpose to discuss the evidence in detail. But there are some striking facts which should be stated. Of the forty-three witnesses for the plaintiffs who testify in regard to the mental capacity of Nailor, thirty-three give their opinion from having seen him when drunk. Of these thirty-three eighteen swear that they never saw him sober, three that they never saw him sober but once, and twelve that they seldom saw him when not intoxicated. Six other of the forty-three witnesses speak of him as incompetent to transact business when he had been drinking. Only four witnesses testify that he was incapable of doing business when sober. Three of these are plaintiffs in this case, namely W. T. Nailor, Matthew Trimble, and James W. Clarke. W. T. Nailor testifies generally that for the last eight or ten years of his life, Allison Nailor, his father, was incapable of transacting business, and that neither on November 27, 1872, when the first deed was executed, nor on March 29, 1878, when the other three were executed, was he mentally competent to make a valid

The question to be decided is not whether Nailor had the mental capacity to make the conveyances when he was intoxicated, but whether he was competent when sober, and whether he was sober when he executed them. On these questions the evidence does not leave us in doubt. There is abundant testimony to show that during the last six or seven'years of his life, Nailor, though habitually intemperate, was often sober and free from the influence of intoxicating liquors. This fact is shown by the testimony of fourteen witnesses who swear that they had interviews with him, many of them frequently, during the time above mentioned, and found him entirely sober. Every one of these fourteen witnesses testifies to the sanity and capacity of Nailor for the transaction of business. These witnesses, a number of whom had dealings with him, assert his mental capacity in the strongest terms. Other witnesses, who did not state distinctly whether they had met him when not under the influence of drink, spoke of the soundness of his mind in the same way. Three witnesses testify that they had known Nailor, one for thirty, and the other two for

The proof of Nailor’s mental capacity extended to a period after the execution of the last three deeds. The physician who was attending his two children during théir last illness, and who had frequent occasion, to observe him when not'at all under the influence of drink, testified to the soundness of his mind.

The apparent discrepancy between the witnesses for the plaintiffs and the witnesses for the defendant on the question of Nailor’s mental condition is, therefore, in a large degree reconciled by the fact that the former give their opinions of Nailor’s capacity when drunk and the latter when sober. In view of all the testimony on this branch of the case, it appears that Nailor, for many years .before his death, had been dissolute and intemperate, and that during the last seven or eight years of his life his health had gradually failed. Much of the time he was more or less inebriated, but he was frequently entirely sober. When drunk he was, like most other men, incompetent to transact business. When sober he -was, down to his last illness, entirely capable of doing the acts which are assailed in this case. He was competent to make deeds, to understand their effect, and to know whether or not their execution would accomplish his wishes. In all conditions, he was perverse, wilful, obstinate, and defiant of public opinion.

The next inquiry relates to Nailor’s mental condition and capacity on the two occasions when he executed the deeds whose validity is questioned by the bill. The averment of the bill was that the deeds were made when he wás intoxicated and mentally incapable. The charge that Nailor was intoxicated when the deeds were executed is without support in the evidence. So far, therefore, as it concerns the deed executed on November 27, 1872, the case must fail for want of proof, for if Nailor was then competent to make a deed when sober, the plaintiffs to succeed in overthrowing that conveyance must show that when he executed it he was not sober, and this they have not attempted to do. In respect to the three deeds of

This evidence is unimpeached and uncontradicted, and is conclusive. Upon the whole record, therefore, in our judgment it plainly appears that Nailor was. not intoxicated, and was mentally competent, when he executed the deeds which are the subject of this litigation.

The cases of Harding v. Handy, 11 Wheat. 103 , and Allore v. Jewell, 94 U. S. 506 , are cited by the plaintiffs’ counsel as authorities in law against this conclusion. These cases establish the proposition that extreme weakness of intellect, even when not amounting to insanity, in the person executing a conveyance, may be sufficient ground for setting it aside when made upon a nominal or grossly inadequate consideration. Conceding the' correctness of this legal proposition, it can have no application to the present case, unless the facts are substantially the same. A cursory reading of the cases will show such a palpable difference in the facts, as to make it clear that they cannot be taken as controlling authority in this. Cases like the present must each stand upon its own facts, and, when the testimony shows that the grantor was sober and capable and well knew what he was doing when he executed the deed, no other case materially differing in its facts can furnish a reason for setting aside the deed thus executed.

The next ground alleged in the bill for annulling the deeds was, that the only consideration for their execution was the

But it should be noted here that three of the four deeds assailed by the bill were made by Nailor mainly for the benefit of the two children whose father he declared himself to be. The interest of the defendant in the property conveyed was remote and contingent. If the deeds were valid when executed, the subsequent death of the children could not avoid them. It is not now open to question that a deed made by a father for the benefit of his illegitimate child, is upon good consideration, which will support the conveyance. Gay v. Parpart, 106 U. S. 679 ; Bunn v. Winthrop, 1 Johns. Ch. 329 ; Hook v. Pratt, 18 N. Y. 371 ; Marchioness of Annandale v. Harris, 2 P. Wms. 432; Jennings v. Brown, 9 M. & W. 496.

The next and last ground alleged for annulling the deeds is that Nailor was induced to make.them by the fraud and undue influence of the defendant. The ground upon which courts of equity grant relief in such cases is, that one party by improper means and practices has gained an unconscionable advantage over another. The undue influence for which a will or deed will be annulled must be such as, that the party making it has

Tested by these rules, the charge that the deeds in question were procured by the fraud and undue influence of the defendant is without support. On this branch of the case the plaintiffs have taken pains to prove that the defendant treated Nailor with great kindness and with unremitting attention to his wants and comforts, but they have shown nothing else. There is an absence of proof that the defendant used either threats, stratagem, importunity, or persuasion to induce Nailor to execute the deeds. In fact there is no evidence that the defendant even requested him to make them. On the other hand, the proof is abundant that the making of a provision for the children whom the defendant had borne him had long been his cherished purpose. As early as 1872, soon after the birth of his son Willie, he executed the first deed. In December, 1877, he executed a will for the sole purpose of providing for the two children then living borne him by the defendant, and for the defendant. Afterwards, conceiving that a provision by will was not as secure as one by deed, he executed the deeds in question, in which he made precisely the same disposition of the property that he had previously made by the will. The

As none of the grounds alleged for annulling the deeds have been maintained, the decree of the Supreme Court of the District of Columbia must be

Reversed, a/nd the cause rema/nded, with directions to dismiss the hill.