Mental weakness that does not amount to inability to comprehend and understand the nature and effect of the transaction is not sufficient to invalidate a deed." The above rule was adopted by this court in Meyer v. Kieckee, 68 S.D. 43, 298 N.W. 261. Appellant's case consists largely of evidence showing that John Egan had for years suffered from a disease known as dementia praecox; that his conduct was in many ways irrational; that he was committed to the Colorado Hospital for the Insane in October 1938 from which institution he escaped in May 1939 and returned to Nebraska; that he was committed to the Norfolk State Hospital before a board of insanity in September 1940. The evidence shows that he was paroled by this institution in May 1941 and later discharged. He was never returned as a patient.
This analysis can be found in many South Dakota contract cases. In an opinion authored by Justice Henderson, this court reversed a trial court's determination that the plaintiff did not comprehend the nature and effect of signing a promissory note. First State Bank of Sinai v. Hyland, 399 N.W.2d 894 (S.D. 1987) (holding lapse of memory, failure to care for property and person and unreasonableness is not sufficient to set aside a contract, a person must fail to comprehend the nature and effect of the transaction); Shearn v. Anderson, 74 S.D. 41, 48 N.W.2d 821 (1951) (determining a person must have sufficient mental capacity to understand his act, he must possess sufficient mind and memory to comprehend the nature and character of the transaction); Egan v. Shindelbower, 73 S.D. 212, 41 N.W.2d 225 (1950) (holding mental weakness that does not amount to inability to comprehend and understand the nature and effect of the transaction is not sufficient to invalidate a deed); Meyer v. Kiecksee, 68 S.D. 43, 298 N.W. 261 (1941). Similarly, Justice Henderson, writing for this unanimous court, affirmed a trial court's dismissal of an action for damages for assault and battery as being barred by the statute of limitations where testimony showed the plaintiff:
"The rule regarding the sufficiency of the evidence to establish incompetency has been stated by this court as follows: `Impairment of the faculties by disease or old age will not invalidate a deed if the party executing it had sufficient mental capacity to understand his act. It must be shown that the grantor did not have sufficient mind and memory to comprehend the nature and character of the transaction. Mental weakness that does not amount to inability to comprehend and understand the nature and effect of the transaction is not sufficient to invalidate a deed.' Meyer v. Kiecksee, 68 S.D. 43, 298 N.W. 261; Egan v. Shindelbower, [S.D., 41 N.W.2d 225] supra." 74 S.D. at 43, 48 N.W.2d at 822.
Opportunity alone for the exercise of undue influence does not warrant setting aside a deed. See Ansted v. Grieve, 57 S.D. 215, 231 N.W. 912, 914 and the cases there cited; also Meyer v. Kiecksee, 68 S.D. 43, 298 N.W. 261. These authorities nullify undue influence as a factor in our decision. Without expressly dealing with an absence of express words of instruction where a grantor delivers a deed to a third person this court had said: "Whether there was a delivery is a question of intent to be found from all the facts surrounding the transaction."
Mental weakness that does not amount to inability to comprehend and understand the nature and effect of the transaction is not sufficient to invalidate a deed." Meyer v. Kiecksee, 68 S.D. 43, 298 N.W. 261; Egan v. Shindelbower, supra. The evidence relied upon by the appellant in this case is that Mary Anderson had for several years suffered from arthritis and diabetes.
As stated above, the trial court held that the evidence failed to establish Frank Orr was entirely without understanding within the meaning of this code provision as construed by the court in the following cases: Mach v. Blanchard, 15 S.D. 432, 90 N.W.2d 1042, 58 L.R.A. 811; Lynn v. Schirber, 45 S.D. 10, 186 N.W. 570; Fischer v. Gorman, 65 S.D. 453, 274 N.W. 866; Hochgraber v. Balzer, 66 S.D. 630, 287 N.W. 585; Green v. Mahoney, 70 S.D. 9, 13 N.W.2d 806. See also Meyer v. Kiecksee, 68 S.D. 43, 298 N.W. 261 and Egan v. Shindelbower, 73 S.D. 212, 41 N.W.2d 225. In the case of Fischer v. Gorman, supra, this court approved the following: