Opinion
04-06-1893
ROTTENBURGH v. FOWL et al.
Joseph J. Summerill, for complainant. C. H. Sinnickson, for defendants.
Bill by Arthur T. Bottenburgh against Amanda Fowl and others to cancel a deed, and for other relief. Heard on pleadings and proofs in open court. Bill dismissed.
Joseph J. Summerill, for complainant.
C. H. Sinnickson, for defendants.
GREEN, V. C. Complainant alleges by his bill that he received in 1888 from the United States, as a soldier of the late Civil War, a bounty of $180, and a pension of $2,800. That prior to, and at the time of, receiving said pension, he was addicted to the use of intoxicating liquors, and that from and after the time of receiving the first mentioned sum until the 1st of January, 1889, be was almost continuously in a state of intoxication, and that his continued intoxication was such that he has scarcely any knowledge or recollection of his transactions during that period. That, when he received the lastmentioned sum of money, he placed $2,500 of it in the hands of Amanda Fowl, one of the defendants, for safe-keeping. That about the time mentioned, he was induced, "as he has been informed," to buy a certain lot in Salem county of one Daniel V. Summerill, Sr., at the rate of $100 an acre, which lot was to be surveyed by a competent surveyor, and a deed made therefor at the price named. That from July, 1888, until January 1, 1889, he lived with Amanda Fowl and her husband. That, at the time of the preparation of the deed, lie was at the house of said Amanda Fowl, in an intoxicated condition, "as he has been informed." That the said land was surveyed, and said deed prepared, by one William A. Summerill, a conveyancer and surveyor living near there. That he never saw the said Darnel V. Summerill, Sr., to the best of his recollection, until the time of the execution of the deed. That he never saw William A. Summerill, to the best of his recollection, until the night the deed was executed, when he alleges said William A. Summerill came to see him, "as he has been informed," at the house of the said Amanda Fowl, and asked him in whose name the said property was to be deeded. That at that time he was in an intoxicated condition, "as he has been informed," and was unable to legally transact business. That the said Amanda Fowl told the said William A. Summerill,"as he has been informed," that the said property was to he put in her name, and that his condition at that time was such, on account of his intoxication, that lie was unable to combat the undue influence of the said Amanda Fowl; and he alleges and charges that she knew of his intoxicated condition at that time, and took undue advantage of him. That on that same night, which was about September 5, 1888, he was taken to the residence of William A. Summerill to hear the deed read and to pay the purchase price for the land. That at the residence of said Summerill, "as lie has been informed," and alleges and charges, the said Amanda Fowl gave to him the sum of $2,000, part of the $2,500 which he had placed in her hands for safe-keeping, and directed him to pay to the said Daniel V. Summerill, Sr., the sum of $1,730, being the purchase price for said land, which direction he, beingin such condition, implicitly followed. That the said deed was made by the said Daniel V. Summerill, Sr., and wife, to said Amanda Fowl, for the price of $1,730. That it bears date on or about September 7, 1888, and is recorded in the office of the clerk of Salem county. He charges that on uccount of his conditional the time, and immediately before, said Amanda Fowl took an undue advantage of his situation, so that the said conveyance was made to her, and not to him, who paid the consideration money therefor, and prays that the defendants may be directed to execute and deliver to him a deed, with proper covenants, for the said property.
The complainant seeks relief on the ground of his intoxication to an extent which deprived him of a proper mental ability to under standingly make a deed, and that the defendant Amanda Fowl took advantage of his condition, and, by the exercise of undue influence over him while in such condition, procured the conveyance to herself. The conveyance to the defendant Mrs. Fowl was made by Mr. Summerill by the direction of the complainant, who paid all the consideration money. So far as these parties are concerned, it was a voluntury conveyance. Mrs. Fowl paid no consideration for the property. But if the complainant was in the possession of his mental faculties, understood what he was doing, and was not imposed on, or subjected to undue influence, this court cannot nullify his executed gift. James, L. J., in Hall v. Hall, L. R. 8 Ch. App. 430, at page 437: "The law of this land permits any one to dispose of his property gratuitously, if he pleases, subject only to the special provisions as to subsequent purchasers and as to creditors." Justice Dixon, in Carpenter v. Carpenter's Ex'rs, 27 N. J. Eq. 502. at page 503, quoting from Story, Eq. Jur. § 350: "There is nothing inequitable or unjust in a man's making a voluntary conveyance, either to a wife or child, or even to a stranger, if it is not at the time prejudicial to the rights of any other persons, nor in meditation of any future fraud or injury to other persons." Van Fleet, V. C, in O'Conner v. Kempt, 29 N. J. Eq. 156, at page 158, says: "However, if this deed was the act of a rational mind, voluntarily done, without artifice or fraud on the part of those to be benefited by it, this court has no power to invalidate it. The courts cannot protect the rash against the consequences of their acts, no matter how disastrous they may be, if they are done voluntarily, and are not induced by craft or fraud." In Dutton v. Thompson, 23 Ch. Div. 278, Sir George Jessel, M. R., says (page 281:) "It is not the province of a court of justice to decide on what terms or conditions a man of competent understanding may choose to dispose of his property. If he thoroughly understands what he is about, it is not the duty of a court of justice to set aside a settlement which he chooses to execute, on the ground that it contains clauses which are not proper. No doubt, if the settlement were shown to contain provisions so absurd and improvident that no reasonable person would have consented to them, or if provisions were omitted that no reasonable person would have allowed to be omitted, that is an argument that he did not understand the settlement. But in no other way would it be a reason for setting it aside." Garnsey v. Mundy, 24 N. J. Eq. 243; Mulock v. Mulock, 31 N. J. Eq. 594, 602; Le Gendre v. Goodridge, 46 N. J. Eq. 419, 19 Atl. Rep. 543.
The bill bases the prayer for relief on the allegation that the complainant's condition of intoxication was such as to render him incapable of properly understanding what he was doing, and susceptible, and in fact subject, to the influence of the defendant, to whom the property was conveyed. The law is settled in this state that, to avoid a contract on the ground of intoxication, it must be shown, either that the intoxication was produced by the act or connivance of the party against whom relief is sought, or that an undue advantage was taken of his situation. Crane v. Conklin, 1 N. J. Eq. 346; Pittenger v. Pittenger, 3 N. J. Eq. 156; Hutchinson v. Tindall, Id. 357; Freeman v. Staats, 9 N. J. Eq. 816; Warnock v. Campbell, 25 N. J. Eq. 485; O'Conner v. Rempt, supra. This case cannot be brought within the rule as to the burden of proof which applies to transactions between persons who stand in confidential or fiduciary relations, where the weaker and dependent party has conveyed or given property to the controlling or stronger one. Mrs. Fowl, it is true, had complainant's money,—he trusted her with it,—but it was only for safe-keeping. It does not appear that he consulted with her us to its expenditure, or what he should do with it, or that she gave or offered her advice on that, or anything connected with his property or personal actions. There is nothing to indicate that he relied on her judgment or counsel in any matter concerning his movements or purposes. She was simply his cashier, holding his money subject to his directions. If the confidential or fiduciary relation which implies reliance by the weaker, and necessarily a controlling influence, does not exist, "the donor must then prove affirmatively the existence of fraud, undue influence, or surprise at the time he made the gift or voluntary settlement,in order to avoid It; and unless and until this is proved the gift or voluntary settlement will be supported." May, Fraud. Conn. (Text-Book Series,) p. 486. There is no doubt complainant was a man addicted to drink, and at times of intemperate habits. His life during the summer, as a fisherman, subjected him to temptation to gratify his appetite; but the evidence fails to satisfy me that his indulgence was to an extent to render him mentally incapable of transacting business, or so weak as to be susceptible to imposition. He acted as Mr. Fowl's bookkeeper at the fishery. He was engaged in various business operations, and parties testify to his being entirely competent to attend to business in an intelligent and capable manner. This, I think, is the result of the weight of the evidence as to his general condition, as affected by his habits, down to the time of the conveyance. Undoubtedly after that time his habits became worse. A presidential election campaign was in progress during the fall, and it appears he took part in its parades, and the consequent excesses, and that it resulted about November 16th in an attack of what the doctor says were symptoms of mania potu. The deed was signed two months and a half before this, and I cannot give the presumptive weight sought to be attached to this illness,— that it implies an impairment of mental faculties at the time in question. As to his condition on the day and at the time the transfer of the property was consummated, there is no testimony, except his own, that he was intoxicated. The scrivener says that, while complainant had a dissipated look, he at the time did not give any indications of being intoxicated. The grantor says he thought he was sober; he saw no indications of his being drunk. Mrs. Summerill says she noticed nothing wrong about him, and Sarah A. Summerill, in her deposition, says that she had never seen him before, and could not say what his condition was, but she thought he was quite stupid, but from what cause she did not know. These persons are all disinterested. The two defendants swear that he was sober during the day, and when the deed was made and delivered.
But if it was clearly demonstrated that the complainant was intoxicated at the time of the transaction, or had been in the inebriated condition during the summer he now claims, there is no evidence whatever that such condition was brought about or connived at by the defendants. If it is admitted that his intellect was somewhat weakened by his habits of intoxication,—not to the extent of rendering him mentally incompetent,—the question presents itself, did the defendants take an undue advantage of his condition to procure a conveyance of this property? There is no evidence to show that either of the defendants used any artifice, persuasion, or even suggestion, as to the purchase of this property. That idea was of his own conception. He had another piece of property in view, which for some reason he failed to secure, and then made the bargain to buy the one in question. The contract was made through a third party, who died before the trial, but it does not appear that the defendants took any part or interest in the transaction. Complainant conversed with others with reference to it, and to several announced his intention of buying it for the defendants' little girl. The allegations of the bill are framed in a way to suggest that the complainant had little or no memory with reference to the transactions attending the purchase of the property, or the execution of the deed. In almost every stage of it, he prefaces his statement with the qualification, "as he has been informed." This uncertainty of statement might be due either to his not knowing what he was about at the time indicated, or to a subsequent loss of memory. That this form of expression was used disingenuously was clearly shown when he came to be examined as a witness, for his mind and memory were clear and distinct as to every minute detail connected with his purchase and the conveyance. None of the parties present, connected or conversant with the transaction, testify to any apparent infirmity of the complainant. They all say he appeared to know what he was about, and to understand the business. He had formed the intention of buying some property, if he got his bounty money from the government. He made the bargain for the purchase of the property through an agent, it is true, but he controlled the terms. It was not a hasty, ill-considered act, but one which he deliberately planned and determined to carry out. He gave the directions himself for having the deed drawn as it was; had it read, and examined it himself; and personally gave it to defendants after it was executed, and told them to have it recorded. Mrs. Fowl says he read it to her husband, and asked him, "How do you like that?" Afterwards, he said he was glad he had been able to repay them for their kindness. He had bought manure for the place, and told them to get some one to look after and farm it. Throughout he appears to act independently and with intelligence. Nor was the idea not to take the title himself a sudden impulse. Before he received his money from the government, he told Mr. Elliott that, if he got his pension money, he intended to buy a property, and give it to Fowl's little girl, Lou. After he had determined to buy the property, he on several occasions declared his intention to have the title put in the child's name. He resented protests made by Mends against his doing so, telling them it was none of their business; that he had a right to do with his own as he saw fit, or words to that effect. He had this disposition of the property in mind until the day the deed was drawn.
The case thus far is that the complainant, at times dissipated, was not intoxicated at the time this deed was executed; that it was the result of a long-entertained intention, deliberately formed, and carried out at a time when he understood what he was doing; that the beneficiary is not shown to have exercised any active influence over him, or to have prepared orsuggested the gift. The only feature of the whole transaction which would seem to indicate undue influence is its seeming improvidence. This is sometimes held to be evidence of controlling influence, on the ground that it is unreasonable to suppose that a competent person would freely and voluntarily give to another that which was necessary for his own comfort and support. But, taking all the circumstances of this case into consideration, is it so remarkable? The complainant was, sofar as his family was concerned, an outcast. They disowned him, and he changed his name. He said none of his family should nave any of his money; that his sister had refused to give him even a quarter of a dollar. He had for a number of years found employment and a home at the defendants' during the summer months. They were kind to him, and he was treated with consideration. He was Fowl's book-keeper, and intrusted with his business. After the little girl was born, he became devotedly attached to her. This found expression both by word and deed. He had no ties of kindred, and he knew he was a spendthrift. His pension was about to be paid, and he knew from his former experience and his habits that, if he kept control of the money, it would be squandered, and he therefore intrusted the most of it to Mrs. Fowl for safe-keeping. She, so far as the evidence shows, faithfully discharged this trust; keeping it, however, subject to his demand and disposal. He was grateful to the defendants for their kindness, and his affection for the little girl prompted him to provide for her, and in this way testify his affection for her, as well as repay her parents for what they had done for him. He had received from the government, according to the bill, very nearly $3,000. Part of it was wasted. This investment was of some $1,800. No doubt, as he intimates, one of the controlling influences with him was the expectation that he was making provision for a home for himself. When the deed was about to be made, the youth of the child seemed to present an obstacle, and it was determined by him to have the deed made to the mother; trusting her to keep it for her little girl. He continued to live with the defendants until the winter. He had always been kindly treated at their home, and there is no evidence, that I recall, which indicates that they were not always, and still are, willing that he should continue to make his home with them. The fact that he has not enjoyed it would appear to be his own fault, not theirs. I fail to find in the case evidence that the complainant was incapacitated, from drink or other cause, from entirely understanding what he was about when he caused this property to be conveyed to Mrs. Fowl, or that she or her husband took any undue advantage of him.
This disposes of the case, as made by the bill. I do not consider whether relief should be granted on any other ground. The general rule is, relief at the hearing can only be granted on the ground set forth in the bill, or within the issue of the pleadings. Andrews v. Farnham, 10 N. J. Eq. 91; Parsons v. Heston, 11 N. J. Eq. 155; Hoyt v. Hoyt, 27 N. J. Eq. 399; Midmer v. Midmer, Id. 548; Pasinan v. Montague, 30 N. J. Eq. 385; Stucky v. Stucky, Id. 546; Watkins v. Milligan, 37 N. J. Eq. 435.
1 will advise that the bill be dismissed.