APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment affirmed.
Mr. Henry C. Beumler and Mr. Henry W. Beumler, for Appellant.
(No appearance for Appellee.)
[53 Ariz. 235] LOCKWOOD, J.
Joe Katz, hereinafter called plaintiff, brought suit against Joseph Sunseri, hereinafter called defendant, to cancel a certain deed executed by plaintiff in favor of defendant. The action was tried to the court sitting with a jury, and judgment was rendered in favor of plaintiff, whereupon this appeal was taken.
Defendant has filed his brief and record on appeal, but plaintiff has failed to appear and answer, Notwithstanding this, we shall examine the case to see whether substantial error was committed during the trial. The complaint alleges, in substance, that plaintiff [53 Ariz. 236] was the owner of certain real estate in Cochise county, and that on the 7th of January, 1937, he was about the age of eighty years, and was, and for some time prior thereto had been, infirm mentally and physically, unable to read or write the English language, and wholly incapacitated for business. It continued that while he was in such condition, defendant fraudulently took advantage of his incapacity and procured him to sign a warranty deed conveying all of his real estate to defendant, falsely and fraudulently representing to him that such deed was a mere matter of form. It is further alleged that defendant had caused said deed to be recorded, and the prayer was that the deed be declared void, and that it be produced and delivered up for cancellation.
Defendant answered, denying all the material allegations of the complaint, except that he did cause to be recorded the instrument in question, which was a deed, and as a separate defense set up that the deed was executed by plaintiff in favor of defendant for a valuable consideration, which consideration the defendant was ready, able and willing to pay; that at the time of its execution the nature of the instrument was fully explained to the plaintiff, and that the latter, being of sound and disposing mind and memory, and not under duress, undue influence or fraud, signed and delivered the deed to the defendant of his own free will. Issue was joined, and a number of witnesses testified, including plaintiff and defendant. Plaintiff stated, in substance, that at the
time he signed the deed he was sick and in bed and did not know the nature of the instrument. Defendant, on the other hand, said that plaintiff voluntarily stated that he desired to make a gift to defendant, who was his nephew, of all of his property. Defendant's daughter, who was more definite in her evidence than either plaintiff or [53 Ariz. 237] defendant, testified, in substance, that plaintiff said to her,
"You have all been taking care of me and I would like to make out some papers to give my property to your dad because I appreciate what you have done for me",
and that the deed was made in pursuance of this statement.
There was considerable testimony to the effect that plaintiff was a man of over eighty years of age; that he could neither read nor write the English language; that he was not at the time of mental capacity sufficient to engage in any ordinary business transaction, and that as soon as he was informed what he had done he repudiated it. A medical witness who testified stated that plaintiff's mentality at the time was about that of an eight or nine year old child.
On this evidence the jury returned a general verdict in favor of plaintiff, and this being an equity case, the court adopted the verdict of the jury and made certain special findings of its own, which were, in substance, that the plaintiff was at the time of the execution of the deed wholly incapable mentally of attending to any business of any nature whatsoever, and that while he was in such condition defendant fraudulently represented to plaintiff that the deed was a matter of mere form, and that the latter, being induced thereto by the confidential relations existing between him and defendant, and acting thereon, signed the deed. The conclusion of law was that the deed was null and void, and wholly ineffective and should be cancelled, and judgment was rendered accordingly.
There are four assignments of error which we shall consider as seems advisable. The first is that the evidence does not support the judgment. This assignment is not well taken, as a consideration of [53 Ariz. 238] ...