KENNEY 'V. CONTNER.
705,'
As to the Park'View property and the homestead the bill is dismissed. A decree will be entered directing the sale of the other property to satisfy the plaintiff's judgments.
KENNEY
et ale
fl. CONTNER
et cd.
(Of!rcuit Court, W. D. Pennsywania. September 29, 1890.)
1.
EQUITY-LACHES-AcTJON TO CANCEL DEED.
The heirs of the grantor filed a bill against the widow, children, and executor of the grantee. to set aside a deed of land on the alleged ground that it had been obtained without consideration from the grantor, an aged and feeble woman,when mentally incompetent, by an abuse of a fiduciary relation existing between her and the grantee, and also by an actual fraud practiced by the grantee and one of the subscribing witnesses. The grantor died a few weeks after the date of the «leed, and it was then immediately recorded, and the plaintiffs had actual knowledge its contents. .Fifteen years had elapsed before the bill was filed, and in the mean time the sJlbscribing witness whose integrity was assailed and the grantee, both of whom survived the grantor a number of years, had died, Held, that the plaintiffs' laohesand thelle deaths were, of themselves, sufficient to· preclude eq,uitable relief.
9.
SAME-UNDUE INFLUENCE.
The calie, however, oonsidered on its merits, and the oonclusion reached that the deed was exeouted when the grantor was in possession of her BOund mental faoulties, and was her free, voluntary, :and deliberate aot, procured by no improper infiuence, and untainted by any aotual or constructive fraud.
In Equity. O. W. Aldrich, Rufus C. Elder, and Andrew Reed, for plaintiffs. D. W. Woods and James e. J)oty, for defendants. ACHESON, J. The plaintiffs are the heirs at law of Elizabeth Kenney, late of·Menno township, Mifflin county, Pa., who died May 25,1874, aged 82 yeara. James Kenney, one of the plaintiffs, is the sou, and the other two plaintiflsare grandchildren, of John Kenney, a brother 6f Elizabeth. The defendants are the widow and children and the executor of Davis McKean Contner, who died on or about January 1,1889. The bill of complaint was filed May 6, 1889. The pnrpose of the suit is to set aside an article of agreement or lease between Elizabeth Kenney and Davis McKean Contne!', and a deed of conveyance from her to him. The article of agreement bears date November 8, 1870, and it was duly acknowledged before Samuel B. Wills, a justice of the peace of Mifflin county, but was not recorded. Dr. T. A. Worrall and Wills are subscribing witnesses to the agreement. After reciting that "whereas, the said Elizabeth Kenney has been for a long time living with and kindly cared for by the said Contner, and whereas, she is desirous to reward him for his care and kindness, as well as to improve her farm,"-a tract of about 130 acres of land in Menno township,-the agreement provides that Contner shall find the materials for and erect on the farm a good two-story house and other buildings, at a cost not to exceed $6,500; the account of the cost to be kept by him and verified by his affidavit, which shall be .su.fficient evidence of correctnessj. ,and, further, that he \·.43F.no.11-45
706.
48..
sbalh,suppoM"maintil.in,' provide: and take care of, 'the said EliZl,t-_ beth ,du!,ing; he:r life"time,tand ,that,. in :consideration, of these things,' Contner and his heirs shall have the possession of the llUld: atthe annuaL rent of$150, to be applied to the or liquidation of the cost of the improvements, ,The deed conveyed the farm to Contner, and virtually superseded the lease, as it passed the whole title. It bears date April 23,1874, and.is for the recited consideration of $500 paid by Oontner, as services iii care of" the pro T. A., 9;nl1 Dr. :. S. said Pyle are subscnbmg WItneSSes ill the deed, and at the end thereof IS the qfficia! ·. WiJ..la,justice of on the 23,d of April, 1874.;"tuegraiitdr, Elizl!obeth before him peract' and deed was rooo1'de9" rnMlfRln cQl,mtyoll.r1l.,nel, 1874. ·· " , . the lea,se ot!lrtioI6!of agreement Contmir' waaifal,la foi': 1llany years hll,d: p\l6n;'the of having the entire management/of bel' business; that she'#lls tli¢n!78 taking advantage of her feeble condition and of her confidence in him as her the agreement, the t,erip,S. of which wereunfair,alld inequitable to bel'; 'that the agreemenVwasnotread to her befdi'e6rat'the T. A. Wqrtall was not then present, but his name had been placed to the agreement as a witness before the said Elizabeth signed it; that Contner failed to comply with tho::tellins ;oftlie agreemeBt rin thaLhe did"riot commence the buildings until the next year. after the time fixed, and ,had not built the house at the time of the death of said Elizabeth; and that the plaintiffs ho:knowledge oftheagreementuntil Decembetr, ,In impeachmentof tbe bill allE>ges,tbat,at the date thereof, and for some' time: beforejEHw.beth Kenney was confined to her bed, with the disease· of lthich· djedshortly the1le&'fter, and was in at'ecible condition 'of mind and;bbdy j and entirely.unfit to transact II.ny business, or, comprehend theeftect. of her actions; that the relationshi'p between her and Contner wasofsuch aficlueiary, charaeter that she was in the habit of trustinghiin with..themanagementof all her affairs" and that, in fraud of'her heirs, Contner obtained tlie deed from her'by'tnking advantage of her confidenoe in him, upona,grtJssly inadequate' consideration, and, that of $500 fact; and the bill charges, further,that theiaeed was not executed when Elizabeth Kenney· was in a conscious ootid-itio)!}'': butthat,'Dy tbeprocurement of' O!)htner, her name was' written thereto by T; A. Wmttall, ;oneof the subScribing witnesses, when.· she was in kstupor a.nd was unconseious, and tbat'the. other ,subscribing witrielllJ Wa.sinducedto attest the deed by theno heirs; In explanation of the delay in ,instituting to fs&i 6Side the deed" the bill states that soon after ,thedea.th of Elizabeth Kenney the pmintiff$!lcaused inquiries' to be made in regard to the transf{\tof.said land, and were 110table to get, any mformatioMO:leadthemtosuspElctthatthe deed was not properly-ex-
ecuted, or' that the said,Elizabeth was· nl)t competent to make the· same," and it was not until sOJlne time in the autumn of thei year 1888 that they received any such information. That information, it seems proper in this connection to stnte, ,came to one of the plaintiffs in a letter from Dr. T. S.,Pyle, one of the subscribing'witnesses to the deed, and now the chief witness in the plaintiffs to impugn the deed. It ought &1soto be here stated that Dr. T;'A. Worrall, the other subscribing witness, and whose good faith ,in the matter is now questioned, died in the month of October, 1877. All the allegations of fact contained in the billaf complaint upon which the plaintiffs' right to relief depends are denied by .the answers, out the bill waived, answers under oath. As preliminary to the co:hsideration of, the particular transactions here involved, certain facts disclosed by ,the proofs, connected with the family history of the Kenneys, should'be stated. The land in dispute originally belonged to Elizai:>eth Kenney's father, Matthew Kenney, who' de'vised it to his son James, as his share of the paternal estate. In the year 1829 James, out of natural love and affection, gave and conveyed the land to his sisters, Martha. and Elizabeth, and to the survivor of them. Martha died in the yeall 1838,a-nd Elizabeth was then the last survivor of her race in:Pennsylvania. None of her deceased brothers or sisters had left issue. She herself never married. As early as the year 1819, John Kenney had removed from Pennsylvania to the state of Ohio; where he settled, and continued to reside until his death, which occurred on February 7, :1873. Between him and his sister Elizabeth there was very little intercourse. James Kenney testifies to a visit of short duration made by his father and himself to Elizabeth Kenney at heThome in Miffiin county about the );ear 1832. Speaking of that visit James say.s: "They, Aunt Elizabeth and my father, were on good terms enough, but she was a little envious, thinking he had come to disposses her." In: explanation, James further states that to his father's inquiry as to her health she responded that "she'was none the better of seeing him;" adding: "I suppose you have come to take possession of the place." "He then told her," James says"that "he never should disturb her in her ,life-time; * * * and they were reconciled friends and jolly after that." Not long after the death of Martha Kenney, John Kenney revisited his sister Elizabeth; On that occasion, as appears from her statements to several of the witnesses, he gave her great offense in some way, and she never got over her feelings of resentment. Five witnesses testify to her declarations made at various times that John Kenney should never have any of her property. Turning now to the matter of the alleged fiduciary relationship tween Elizabeth Kenaey and Davis McKean Contner, it must, I think, be said that the· proofs do not sustain the averments of the bill in that partkular. It is not satisfactorily shown that Contnerwas ever the general agent' of Miss. Kenney, or charged: with the entire management of her business. She seems to have been an intelligent, shrewd, and ble woman,and she gaV'e active personal attention to her business af. fairs downtoa late period in her life; although, nodoubt,in those mat-
FEDERAL REPQRTER,
vol. 43.
tersshe had Mr. Contner's assistance arid services. The true nature of the relation between the two may be deduced from the following facts shown by the evidence': When a boy , Contner came' to live with and work for Miss Kenney. Two of the witnesses speak {)f her having raised him, and, with the exception of two terms he served as sheriff of Mifflin 'oounty, he spent his whole life-time from boyhood on Miss Kenney's place, and much of the. time lived in the saUle house with her. At the time: of the execution of,fhe article of agreement of November 8, 1870, Miss Kenney lived in the family of Mr. Contner,·on the farm, and she continued to live in his family until her death. At different times between the years 1862 ,and J.874, and to several different persons, Elizabet.hKenney stated that she intended to give her property to Mr. Contner. That she was in a perfectly sound mental condition when she made these declarations; there is no reason to doubt. The only evidence in the case bearing directly upon the execution of the article of agreement. is the testimony of Samuel B. Wills, the justice of tbepeace, who I"tates that he signed it as a witness, and took the acknowledgment of at the home of Elizabetb Kenney on the evening of November 8,1870; that he went in consequence of a message from Mr.Contnerj that all the signatures except his own were already to the agreementj that Miss Kenney said she knew the contents when he asked her; that he proposed to read the paper, but she said it was not necessary, as she knew what it meantj that Mr. Contner and his family werepresentj that Miss Kenney seemed to be in good health for a person of her age, and he thought her mind was all right,-" as well as a person's could be." As already intimated, by far the most important witness in the whole case on the. part of the plaintiffs is Dr. T. S. Pyle. He attended Elizabeth Kenney inherJast sicklless; his visits beginning about April 1, 1874, and ceasing about the 29th of that month·. He testifies that during all that time he would not consider her competent to transact any business. Dr. Worrall was called in to give his opinion, and a consultation took place on' April 22d. The next morning Dr. Pyle and Dr. Worrall met in the sick-room, and the substance of Dr. Pyle's testimony as to what then occurred is this: He statE'S that he found Miss Kenney in a much lower condition than she yet had been, and when he spoke to and touched her she neither answered nor moved, and she seemed to be in a comatosestatej that Dr. Worrall and he raised the old lady up in bed, Ilind propped her up, but s.he made no effort to hold her head or steady herself at all; that he kept her in a. 'sitting position while Dr. Worrall a paper which he brought to the bed, saying, "Aunt got from the Betsey, we want you to sign this" making the sheriff your son j" that Dr. Worrall took in his own ,band a pen and the old lady's fingers and wrote, or pretended to write, and then took the paper to the table and wrote some;thfl,t Dr. Worralltold.himto 'put his name to the paper, which he then. saw was a deed, and .he(Pyle) signed it as a witness; that Contner was present while all. this happened; that on that occasion nothing was said about there heingno heirs, but Contner had once so told bim; that
IUmNEY II. CO!;TNER.
709
when Dr. Worrall and Contner left that morning they told him toremain until the justice came, and he did so; that he the paper to the justice, Esquire Wills, when he came, and the justice sat down at the table and wrote something, and then got up and left the house; that the justice said nothing at lill to Miss Kenney, and no words passed between them. Dr. Pyle further says that about a year and a half before he gave this testimony, which was in August, 1889, one Robert Campbell told him Elizabeth Kenney had relations, and afterwards he wrote to James Kenney. ' This certainly is extraordinary testimony. It implicates Mr. Contner and Dr. Worrall, both in their graves when the witness spoke, in an atrocious fraud upon a helpless and unconscious woman, the patient of Dr. Pyle, perpetrated in his presence, and with his acquiescence, at least, and puts him in the attitude of having given, by his attesting signature, authenticity to a deed which he knew Was little less than a downright forgery. Furthermore, it imputes to the justice of the peace gross official" miscond uet, for it represents him as making an untrue and fraudulent certificate; anG this guilty secret Dr. Pyle kept locked up in his own breast for a period of 14 years, when he voluntarily divulged it. The testimony of Samuel B. Wills in respect to the acknowledgment of thE:: deed flatly contradicts Dr. Pyle, and is wholly irreconcilable with his account of the matter. Mr. Wills testifies that when he took Miss Kenney's acknowledgment no one was present in the room, nor while he wail with her; that "her body was weak, but her mind was clear;" that the paper was on a table near the bed on which she was lying, and she directed him to it; that he asked her if he should read it to-her, and she replied it was not necessary, and said: "I kno" what it means. This is a deed I am making of this property to D. M. Contner. T want him to have iti" tlllit he then asked her if she acknowledged it to be her act and deed, and she said she did. The tesW mony orMr. Wills appears to be that of a disinterested and impartial witness, and, aside from Dr. Pyle's implied aspersion of him, his tegrity is unquestioned. The discrepancy between him and the witnesses Richard and Gilbert Brindle, as to which of them carried the message which summoned him to Miss Kenney's: house in November, 1870, and the precise terms of that message, involves merely a matter of recollection as to collateral circumstances, in themselves of no great moment. Nor do I find anything in what Mr. Cline and Mr. Aldrich recount as said by Mr. Wills in the interviews of which they speak, which in fairness ought to impair the force of his testimony. In this connection, the teatim any of Miss Mary A. Bailey, a visiting acquaintance of Elizabeth Kenney, is worthy of special mention. She was a member of Dr. Worrall's family, and went with him to see Miss Kenney about 10 days before she died. She says that on that occasion 8he was alone with Miss Kenney, and in conversation with her, for about half an hour,. and that her mind was clear and strong. Miss Bailey states: '$hewas glad to see me, and reprimanded me for not coming oftener. She tol<i me, she was feeling ID.ore comfortable now ; that she was satisfied; that.
,REPQRTER,
lfAAJlAA)gptt!\D she. had wan,ted t4flilliand thats4e t,q ,give Kean,anB farm, and she hfL4 Illade 'deE-d of'thefllrm, and' that nqw, was satisfied; that &he .bad ,got things fixed "as'she wanted theril;"", ",. . " . . ',,'. ,' , , l , ',' ,!. ' , , ,
. IllJe; about a deed before Miss Kenney ,tpld her9fit;., }!js,s' is unimpeachedwitnesB, and I am unfor either her truthfulness or the ableto,discov.er ,j!cpuracy ;. J '. There is other important testimony in the case bearing upon the deed of JLshaLl:.not recite; It is enough to say that some ,of it goesW· di,&cre<i.it Dr;,;Fy'le, while ,much of it ,directly tends to susthe trapsaction,.8s.fairand :hooest.. Tl1kiog the evidence as a whole, 1 am of opinion t,ha! j,t fully warrnnts the conclusion that the conContn.er by Elizabeth. Kenney was ber free.and .voluntary;;a:et, procured bynoimproperinfluence,and un,tainted Qyanyactual or .eonatructive fraud, and that she executed the 400Q wheij. full:poeseSsion of her sound mental faculties. in view ofheraRproaQhing death, and in consummation of a long cherished and pqrpose. ' . cQrrectness ()f this conclusion questionable,' still, it to; .the gJ:Elat delay of the plaintiffs in. prooeeding to have them .from redress. Landsdale v. Smith, Ct. Rep. 350. Undoubtedly, they had timely knqwledge, ,of the nature of the relationship which had so long axi!!ted between ElizabatbKenney and Mr. Contner. They have put in evidence several by him tomemhers of John Kenney's family" tbefin:;t SQearly a date as August 3, 1857 j and the last dllted July ,10. 1&7,4;/and those lettersrevE'-al plainly enough his footing Kenney ·· : The deed,withits disclosure of the consideration , the names of the subsmoipillg witnesses, and thejustice ofthe peace who wok Elizabetll iKenney'sMknowledgment,was spread upon the records , Of ,on June 1, I8U.The letter of July 10, 1874, from Contner to ;James KeQneYi ga\1e prompt and full information of the disposition Miss Kenney had made of berestate. Contner therein wrote: .made nO w,ill in writing, but gave me her real estate by a deed ofCOllYeyance,"etc., Be, further explained that she desired that Per personal estate, which was small, together with '!500 dollars of consideration mopey, "sPould be taken to pay funeral expenses. etc.; and ;he also (I\aJiIkly informed Ja.mes that upon. his .(Contner's) return from moved .jnto the house, and Aunt Betsey-just boarded lived wJthus, *. "" ,* reserving but one room in the bouse for her 'own USe,. where she slept,'and that was· in. our room, until v,ery.soon, atter Miss Kenney's death, the plaiotiffs sent an she cQ1Juty,·:whomade inquiries touching the conveyance of reference ,to bill of .complaint, it will be perceived that the plaintiffs do not pretend that they did not know or then learn fllrpt,,,,,jfecting, the integrity of the transllGtiQn,except "information 1.9 that the, deed was not properly executed, or that i
i, j I . L · ,
,
AMERICAN PRESERVERS' CO. fl. NORRIS.
'111
the said Elizabeth was not competent to make the same." But the plaintiffs do not allege that they applied for information on that subject to either of the subscribing witnesses· or to the justice bf the peace, nor do they assert that Contner in any manner misled them. Therefore, are they without reasonable excuse for their long delay in bringing suit. Badgerv. Badger, 2WalI. 87,95. Tbelapseofl5yearschanged the whole defendants. Dr. Worrall, who situation to the great prejndice would have been an invaluable witness,: survived Elizabeth Kenney three and a half years, and Mr. Contner lived eleven years sti11longer, but death bad sealed the lips of both before, the plaintiffs sll.w fit to move in the assertion of their .claim. In the case of Jenkin8v. Pye, 12 Pet. 241, which was a suit to set aside a derd by which a daughter, 23 years old, had conveyed all her remainder in real estate, which had belonged to her mother, to her .fa':' ther fora nominal consideration, it was said by Mr. Justice THOMPSON tbat"lapse of time, and the death of the parties to the deed, have always been considered in a court of chancery entitled to greatW'eight, and almost controlling circumstances, in cases of this kind;" and in Godden ,v. Kim.. mell, 99 ,U.S. 201, 210, this principle was reaffirmed, and was applied to a case where 14 years had elapsed from the date of the deed to the filing of the ,bill. In any view, then, that can be taken of this der the proofs, the plaintiffs are not entitled to any relief. Let,a decree be drawn dismissing the bill of complaint, with costs.
AMERICAN PRE'lERVERS'
Co· .".
NORRIS
et al·
. (Circuit Oourt, E. D. M.iS8ouri, E. D. September 1, 1890.)
CO;RPoRATf'6NS-'CONTRAOTS.
A manufacturing oorporation sold its business to its principal stockholders,wbo thereupon sold it to a third ,person, with an agreement not to enter into ,the BaIne business, directly or indirectly. This agreement was not signed by the corporation. Held, that the corporation was not bound by the agreement. An agreement not to enter into,. a certain business will not be enforced by preliminary injunction, at suit of the assignee of the covenantee, where the defendants are ab{!ndantly solvent, alld there is doul;lt whether the agreement, being gene,ra,l, is valid, whether it is supported by an adequate consideration, and whether is assignable. , WHEN ISSUEp. ' ,
S.
In Equity. On motion for injunction. lJhW.er H. Krum; Frank K. Ryan, A. Leo Weil, andM. F. Elliott, for complainant. Jud$on &; Reyburn, for defendants. 'rHAYER,J. The material'facts on which the decision of the presElnt motion depends are substantially as follows: .· 'faylor ManufactulingCompapy . ll, corporation duly orgl1nized l,1,nder the laws of Miss,ouri, and for /leYEll'al yearl3 has been engaged 'in