There was certainly strong evidence upon the trial of this case to show that the deed executed by the grantor to the defendant was not his free act and deed. He was at the time over seventy years of age, and the evidence clearly establishes that from a vigorous and strong man he had become weak and feeblephysically; that his mind was impaired so that he was unable to attend entirely to his own business affairs, and that he required the assistance of others in matters of importance. His memory was failing, and on many occasions, as the proof showed, he was unable to properly care for his own interests and rights. He executed the deed to the defendant and denied that he had done so. Although he had declared that he intended to give his farm to the defendant, at different times he had also declared differently upon other occasions, and said that his nephews and nieces stood alike to him, and should share his property equally. It thus appears that his purpose in this respect was not a settled one, and from the circumstances presented he was precisely in that condition when he was liable to become the victim of fraud, imposition or undue influence. The proof shows that the defendant employed Andrew Schooley, who lived adjoining the grantor's farm, to whose house he was in the habit of going frequently, and with whom he was on intimate terms, to procure a deed conveying the farm to him, and agreed to pay him therefor the sum of $1,000. Schooley procured the deed to be drawn by an attorney, *Page 510 without the knowledge of any other person, giving instructions in regard to the terms, brought the attorney with the deed to his own residence, then brought the grantor there and the deed was then signed and acknowledged before the attorney, who was a notary. The deed conveyed the farm, reserving a life estate to the grantor, and provided that the defendant should pay $500 to each of his sisters. The grantor, after returning home, upon inquiry, stated that he had signed no paper in regard to his own affairs, but had done a little neighborly business; and, when questioned afterward, emphatically denied that he had signed a deed. About fifteen months after the deed was executed the grantor in proceedings de lunatico inquirendo was adjudged to be a lunatic. These facts were uncontradicted; and the deed was executed secretly, with no relative present and under circumstances extremely suspicious. The evidence does not show that this was done at the suggestion of the grantor, in pursuance of a prior declared intention or as a voluntary act, but that it was procured by Schooley under a promise of being paid a large sum of money. In view of the facts, with no explanation given, every intendment is against the validity of the deed. If the grantor had executed such a conveyance of his own free will, without the intervention, or pressure, or influence of an intimate friend, and with no consideration to be paid for such intervention, it might be upheld. It was in the power of the defendant to rebut the inferences to be derived from the facts stated, and we think, as the case stood, it was incumbent upon him to prove that the transaction was without fraud or undue influence, and correct and fair. The defendant and Schooley, who knew all about it, were not sworn as witnesses and gave no testimony. The defendant made no explanation of his conduct or of Schooley's interference, and remained silent upon the trial when he should have spoken, and these facts, we think, bear very much against the defendant and tend to strengthen the plaintiff's case. Prima facie, the influence brought to bear was of a character to induce one whose mind was affected and impaired to yield improperly to the importunity or the will and dictation of another *Page 511 as the controlling power. This we think was undue and improper influence, within the meaning of the decisions. The exercise of undue influence need not be shown by direct proof, but may be inferred from circumstances, although they must be such as to lead justly to the inference that undue influence was employed, and that the instrument which was executed did not express the real wishes of the person who signed it. (Brick v. Brick,66 N.Y. 144.) The deed in question would not have been given without the intervention of the defendant by the employment of Schooley, under the promise of a large pecuniary reward, entirely disproportionate to the services rendered, and the conclusion is irresistible from the evidence that undue influence was exercised in procuring the conveyance. Under the circumstances the finding of the judge upon the trial, that the grantor was controlled and directed by undue influence exercised by Schooley, and that the conveyance and its execution was not his free act and deed, is supported by sufficient evidence.
We think that there was no valid objection to the testimony of several witnesses, sworn upon the part of the plaintiff, as to their impressions derived from specific acts and conversations of the grantor at different times, that is, that were irrational, and within the authorities evidence of this character, under the circumstances, was properly received.
The inquisition of lunacy was also competent and prima facie evidence, that at the time it was taken the grantor was not competent. To this extent and no more it was material, and whatever inference is to be derived therefrom prior to that time was a subject for consideration by the trial court.
The judgment was right and should be affirmed.
All concur.
Judgment affirmed. *Page 512