#### Charles Bollnow et al. v. Mary Roach.

Opinion filed June 23, 1904.

1. Evidence—when record of former suit is not admissible to prove mental incapacity. The record of a former suit, in which there was a verdict of a jury finding the complainant mentally incompetent to make the deed sought to be set aside, is not admissible in a subsequent suit by the-defendant to the former suit against strangers to that proceeding to set aside a deed to them from the same grantor upon the same ground.

2. Same—when the admission of incompetent evidence will not reverse. Admission of incompetent evidence which would have been fatal in a suit at law will not reverse in a chancery case, where the verdict of the jury was but advisory and the decree rendered upon a consideration of the whole evidence, and there is sufficient competent evidence in the record to sustain the decree.

*3653. Equity—when grantee must be reimbursed on setting aside deed for mental incapacity of grantor. Where the grantee in a deed given in consideration of future support-has fully performed the agreement and the transaction is "fair, the deed will not be set aside at the suit of an heir who stood by while the contract was being performed, except upon restitution to the grantee of his expenditures, even though the grantor was mentally incompetent.

4. Same—when equity may retain jurisdiction. Equity having acquired jurisdiction of a proceeding to set aside a deed upon the ground of mental incapacity of the deceased grantor may adjust the equities of the parties without requiring the grantee to present his claim in the county court, where the latter is entitled to reimbursement as a condition to the setting aside of the deed.

Appeal from the Circuit Court of Kane county; the Hon. H. B. Willis, Judge, presiding.

Harvey A. Jones, for appellants.

Robert S. Egan, and Ernest C. Luther, for appellee. 6

Mr. Justice Cartwright

delivered the opinion of the court:

On November 6, 1899, the appellee, Mary Roach, one of the daughters and heirs-at-law of Dennis O’Sullivan, filed in the circuit court of Kane county her bill against B. .Stroble and the appellants, Charles Bollnow and Anna L. Bollnow, his wife, asking the court to set aside two deeds executed by said Dennis O’Sullivan and Mary O’Sullivan, his wife; one conveying forty acres of land to said Stroble and the other conveying" forty acres to appellants. The grounds alleged for asking such relief were the mental incapacity of Dennis O’Sullivan and undue influence of the grantees. The defendants answered, denying mental incapacity and undue influence, and on April 1, 1902, the complainant dismissed her bill as to Stroble and obtained leave to amend the bill. At the September term, 1902, she filed a bill against appellants alone, making the same averments of mental incapacity and undue influence, and praying the court to set aside *366the deed to them. They answered, making the same denials as before, and an issue was made up and submitted to a jury whether Dennis O’Sullivan was mentally competent to execute said deed, to which question the jury returned the answer “No.” The court entered a decree setting aside the deed, and referred the cause to a master in chancery to take an account of the rents, issues and profits of the premises and report the same to the court. From that decree this appeal was taken.

The facts proved are substantially as follows: Dennis O’Sullivan was the owner of eighty acres of land in Kane county. He was an old man and mentally and physically feeble. He and bis wife, Mary O’Sullivan, lived with their daughter, Mary Roach, the complainant, and on January 6, 1891, made a deed to her of said land for the expressed consideration of one dollar, and on the further consideration that the grantors w.ere to have the use of the premises during the lifetime of Dennis O’Sullivan, and after his death the grantee was to have them, subject to the payment of §100 per annum to his widow, Mary O’Sullivan, during her natural life. On May 3, 1892, Dennis O’Sullivan filed his bill in the circuit court of DeKalb county to set aside said deed, and obtained an injunction against Mary Roach, the complainant-in this suit, to prevent her from conveying or encumbering the land. That bill was dismissed, and he filed a bill in the circuit court of Kane county on December 24, 1892, against said Mary Roach and her husband, alleging" mental incapacity to make the deed, fraud and undue influence of the grantee and want of delivery. Mary Roach and her husband answered the bill, and issues were formed and submitted to a jury whether Dennis O’Sullivan was mentally competent to make the deed, whether it was obtained by fraud or undue influence and whether it was delivered. The jury found against Mary Roach on each of said issues, and a decree was entered setting aside the conveyance. At the time of that litigation, in *3671893, Dennis O’Sullivan and his wife went to live with their other daughter, Anna L. Bollnow, one of the defendants in this suit, and on February 25,1895, they made the deed of forty acres involved in this suit to the said Anna L. Bollnow and Charles Bollnow, her husband, in consideration of one dollar, and upon condition that the grantees should furnish to the grantors during their natural lives, and to the survivor of them during his or her natural life, a suitable home and support upon said premises, care for them in sickness and in health, and furnish them proper medical aid during their several lives and a decent burial at their respective deaths. Dennis Q’Sullivan was about eighty years old and his wife was also old, and both were feeble. They lived with the defendants and were cared for by them on the premises from the date of the deed until April 3, 1898, when Dennis O’Sullivan died. The house on the premises was burned on December 3, 1897, and the defendants re-built it. Mary O’Sullivan continued to live with the defendants and was supported and cared for by them until her death, on February 3, 1902. Both were given proper burial at their respective deaths, and the agreement was fully performed according to its terms by the defendants. The forty acres was partly stump land and needing draining, which would be expensive, and the land was not very valuable. - The deed to the defendants was made a matter of public record on March 21, 1895, soon after its execution. The defendants were living on the premises for years after, performing their part of the contract, and no step was taken by the complainant or any other person to have a conservator appointed or to question the validity of the conveyance. There was no evidence tending to prove fraud or undue influence on the part of the defendants. The parties were members of the same family, so that there was opportunity for the exercise of influence, but the contract was not unreasonable in its nature or of such a character as to raise *368an inference of fraud or of any intention of the defendants to take advantage of Dennis O’Sullivan. The contract was not unfair in its terms, and was such a one as a person mentally competent would have been likely to make.

The court, against the objection of the defendants, admitted in evidence on the part of the complainant the record in the suit against her and her husband by Dennis O'Sullivan to set aside the deed of 1891, in which there was a verdict finding that Dennis O’Sullivan was , mentally incompetent to execute said deed. That record was admitted to prove the mental incapacity of Dennis-O’Sullivan, and the ruling was erroneous. It was not an inquisition by public authorities on behalf of the public, where it has been said that no one is wholly a stranger to the proceedings, and where the record is admissible in evidence although not conclusive against persons who are not actual parties. The former suit was between the complainant and her parents, in which the defendants inNthis suit were not heard, had no right to make a defense, produce evidence, cross-examine witnesses or appeal from the decree. They were in the strictest sense strangers to the suit and could not be affected by the proceedings. The record was not evidence against them. (Whitaker v. Wheeler, 44 Ill. 440; 24 Am. & Eng. Ency. of Law,—2d ed.—190). In the trial of an issue at law such an error is regarded as fatal, but in this case the verdict of the jury was advisory, merely, and a decree was rendered upon a consideration of all the evidence. In such a case it will be presumed that the court considered only the competent evidence, and if that is sufficient to sustain the decree, the fact that incompetent evidence was admitted before the jury will not cause a reversal. Dowie v. Driscoll, 203 Ill. 480.

We think that the competent evidence sustains the finding of the court that the mind of Dennis O’Sullivan was so impaired by age and feebleness that he was men*369tally incapable to execute the conveyance and agreement, and that by reason of his mental incapacity the conveyance was void'ablé. He had not been adjudged insane, and the deed and agreement were in full force until proceedings should be taken to set them aside and have them declared void, and under the evidence we think the deed should not be set aside without allowing to defendants what was expended in the performance of the contract on their part. There is no evidence that it was the intention of the defendants to take advantage of the infirmity and feebleness of Dennis O’Sullivan or to defraud him. The consideration cannot be said to be inadequate or the agreement inequitable. The defendants did not pay him money or give him property which was lost or squandered, but only furnished to him and his wife necessary support and maintenance for their comfort in their old age and gave them proper burial. Althoug'h the evidence shows that Dennis O’Sullivan was legally incapacitated from making a binding contract, the one made was not unfair in its terms, and the consideration agreed upon was actually paid in necessaries and necessary expenses of the grantor and his wife. The complainant stood by while the contract was being performed on the part of the defendants, and to allow her to have the conveyance set aside without making proper restitution would merely be perpetrating fraud on the defendants. They would not be allowed to take advantage of their own fraud or wrong if any were shown, but none was -proved. They doubtless knew of the former suit in which the deed to the complainant in this suit was set aside, but the bill in that case alleged that Dennis O’Sullivan had fully recovered his mental powers and capacity,, and it was prosecuted by him without the intervention of a next friend, guardian ad litem, or conservator. In Ronan v. Bluhm, 173 Ill. 277, it was said “that a completed contract of sale of lands by a grantor who is insane but has not been judicially declared insane, for a fair consideration *370in money or property, to a grantee who entered into the contract without fraudulent intent and without knowledge or notice of the disability of the grantor, will not be set aside in favor of the grantor or his representatives unless the purchase price be returned or the property parted with by the grantee be restored.” The incapacity of Dennis O’Sullivan resulted merely from feebleness of old age, and whether he was mentally capable to enter into contracts and make a conveyance was a controverted question at the trial, so that it cannot be said that there could be but one conclusion on that subject.

Counsel do not seem to deny that defendants were entitled to compensation, but say that there is nothing in the decree which takes away their right to present their claim to the county court. Apparently the time for the allowance of claims against the éstate of Dennis O’Sullivan has long since elapsed, and so far as appears there is no estate of Mary O’Sullivan from which to obtain satisfaction, if the time has not also elapsed in that estate. .The circuit court acquired jurisdiction to adjudge the equities between the parties in setting" aside the deed, and to send the defendants to the county court would be to deny to them payment for proper expenditures made in good faith in the performance of their agreement.

We are of the opinion that the account taken by the master should include all proper expenditures on the premises and compensation for what was done in performance of the agreement, and if there should be a balance in favor of the defendants, the deed should only be finally set aside upon making restitution of such balance.

The decree will be modified in that respect and the master will take the account accordingly. As so modified the decree is affirmed. Appellants will pay one-half the costs of the appeal and the appellee the remaining half.

Modified and affirmed.