Opinion
No. 33547.
September 11, 1939. Suggestion of Error Overruled October 23, 1939.
1. ASSIGNMENTS. Deeds.
In suit by Indian woman and another against her daughter and others for half interest in estate collected by daughter from her deceased father's estate and Federal Interior Department, evidence held to show that defendant daughter was incompetent to execute deed and assignment of such interest in lands and other property to complainants.
2. DEEDS.
A conveyance of land by person of great mental weakness, arising from age, sickness, or other cause, though not amounting to absolute disqualification, for grossly inadequate consideration, will be set aside by equity court on proper and reasonable application by injured party or his heirs.
APPEAL from chancery court, of Neshoba county; HON. T.P. GUYTON, Chancellor.
Thomas E. Rhodes, of Washington, D.C., and Nate S. Williamson and Harold W. Davidson, both of Meridian, for appellants.
Lilly Nubby has a vested interest in one half of the trust estate held by W.W. Pierce under the trust agreement of April 30, 1931.
A statement by an owner regarding or affecting his title is admissible not only against himself but also against parties claiming under him.
Levy v. Holburg, 71 Miss. 66, 14 So. 537; Walker v. Marseilles, 70 Miss. 283, 12 So. 211; Sharp v. Maxwell, 30 Miss. 589.
Lilly Nubby was the lawful wife of Hickman Willis at the time of his death and the only wife he ever had. In re Estate of Willis, 129 Okla. 155, 265 P. 1064. Open the death of Hickman Willis the title to his entire estate immediately became vested in his lawful heirs, namely, his wife, Lilly Nubby, his legitimate daughter, Lonie Scott, and his illegitimate daughter, Lodie Willis, each being vested with title to a one-third interest in said estate.
67 C.J. 238.
Lilly Nubby is now entitled to recover either under her contract of 1926 with Lonie or under the instrument executed by Lonie on January 17, 1933, or both. The agreement of 1933, is a reassertion and confirmation of the agreement of 1926 and of the verbal understanding between Lilly and Lonie from the time they first heard of Hickman Willis' death that they would divide whatever was recovered by them, or either of them, equally between themselves. The only substantial difference in principle between the agreement of 1926 and the instrument of 1933 is that the latter instrument may be construed as limiting Lilly's recovery to one-half of the money and property then held (in 1933) by Pierce as trustee, whereas the agreement of 1926 comprehended one-half of all that Lonie recovered.
Sufficient search was made for the lost documents, consisting of the power of attorney from Lilly Nubby to Odio Moore of 1925, and the contract between Lilly Nubby and Lonie Scott executed at the Indian Agency at Philadelphia, Mississippi, in 1926, to justify secondary evidence of the making and the contents of said documents.
8 Encyc. of Evidence, pages 350 and 351; Carter v. Myers, 132 Miss. 698, 95 So. 252; Native Lbr. Co. v. Elmer, 117 Miss. 720, 78 So. 703; Minor v. Tillotson, 7 Pet. 99.
The record in this case shows that Lonie Scott was competent to execute the agreement of 1926, and the instrument of January 19, 1933, and that her signature to said two documents was obtained without fraud or undue influence.
Gillis v. Smith, 114 Miss. 665, 75 So. 451; Creswell v. Creswell, 164 Miss. 871, 144 So. 41; Baum v. Greenwald, 49 So. 836; 18 C.J. 425.
The alleged appointment of W.W. Pierce as guardian of Lonie Scott by the county court of Bryan County, Oklahoma, in February, 1933, is illegal and void and not entitled to full faith and credit in the courts of Mississippi.
Steele v. Steele, 152 Miss. 365, 118 So. 721.
Lonie Scott being the creator of the trust agreement of April 30, 1931, which was created for her benefit, possessed the power to alienate one-half thereof, and the deed of January 19, 1933, is a valid assignment and conveyance to Lilly Nubby.
Brown v. MacGill, 87 Md. 161, 39 A. 613, 39 L.R.A. 806; Scott v. Keane, 87 Md. 709, 40 A. 1070, 42 L.R.A. 359; McIlvane v. Smith, 42 Mo. 45, 97 Am. Dec. 295; Graff v. Bonnett, 31 N.Y. 9, 88 Am. Dec. 236; MacKason's Appeal, 42 Pa. St. 330, 82 Am. Dec. 517; Ghormley v. Smith, 139 Pa. St. 584, 21 A. 135, 23 A.S.R. 215; Nolan v. Nolan, 218 Pa. St. 135, 67 A. 52, 12 L.R.A. (N.S.) 369; Petty v. Moore, 110 Va. 815, 67 S.E. 355; Restatement, Law of Trusts, 386, sec. 156; Helvering v. Hemholz, 296 U.S. 93, 80 L.Ed. 76; Phelps v. Thompson, 198 N.Y.S. 321; 2 Perry on Trusts and Trustees (7 Ed.), sec. 290, pages 1562-1563; Fidelity Columbia Trust Co. v. Gwynn, 206 Ky. 823, 268 S.W. 537; Stephens v. Mo., 298 Mo. 215; Cole v. Nickel, 43 Nev. 12; Whittemore v. Equitable Trust Co., 162 App. Div. 607; Maber v. Hobbs, 2 Younge C. 327; Rowley v. American Trust Co., 144 Va. 375; First Natl. Bank v. Cash, 220 Ala. 318, 125 So. 319; Boothe v. Cheek, 253 Mo. 119, 161 S.W. 791; Leigh v. Harrison, 69 Miss. 923; Dibrell v. Carlisle, 48 Miss. 691; Merchants National Bank Trust Co. v. Port Gibson Oil Works, 165 Miss. 314; Baker v. Whiting, 3 Summer 475.
The Chancellor has the power to compel W.W. Pierce, as trustee, to forthwith pay, convey, transfer, assign and deliver unto Lilly Nubby one-half of all of the money and property held by him as trustee for Lonie Scott under the trust agreement of April 30, 1931.
21 C.J. 150, 151; Massie v. Watts, 6 Cranch 148; Nugent McWillie v. Powell, 63 Miss. 99.
The special chancellor committed prejudicial error in overruling the motion of the appellants to amend the amended bill of complaint so as to strike out the allegation that Lonie Scott and Lilly Nubby were "full blood" Choctaw Indians.
Act of Congress of May 27, 1908, c. 199, 35 Stat. 312; Parker v. Richard, 250 U.S. 235; Munich Reinsurance Co. v. First Reinsurance, 6 F.2d 742; Jenkins v. Collard, 145 U.S. 546; Benton Harbor Fuel Co. v. Middle West Coal Co., 271 Fed. 216; The Kaiser Wilhelm II, 246 Fed. 786; Morgan's Louisiana T.R. S.S. Co. v. Isaac Joseph Iron Co., 243 Fed. 149; Muir v. Louisville N.R. Co., 247 Fed. 88; Givens v. Zerbst, 255 U.S. 11; Nishimura Ekin v. U.S., 142 U.S. 651; Riverside Oil Co. v. Hitchcock, 190 U.S. 315.
The chancellor has the power to remove the defendant as trustee as to one-half of the trust property, or as to the whole.
3 Pomeroy's Eq. Jur., page 2419, sec. 1058, page 2427, sec. 1062, page 2455, sec. 1071, page 2503, sec. 1086; May v. May, 165 U.S. 310; Franz v. Buder, 34 F.2d 353; Nutt v. State, 96 Miss. 473.
W.W. Pierce, of Jackson, and Richardson Sanford, of Philadelphia, for appellees.
Appellant, Lilly Nubby, had no vested interest in the estate of appellee, Lonie Scott, held in trust by appellee, W.W. Pierce, for the use and benefit of the appellee, Lonie Scott, under the trust agreement dated April 30, 1931.
R.R. Co. v. Burke, 53 Miss. 200; Johnson v. State, 154 Miss. 512; Gates v. Seibert, 157 Mo. 254, 57 S.W. 1065; Stewart v. Hirriman, 22 Am. Rep. 408; Clark v. McClearey, 20 Miss. (12 S. M.) 347; Marshall v. King, 24 Miss. 85; Day v. Madden, 48 P. 1053; Richardson v. Aiken, 87 Ill. 138; Steers v. Kinsey, 68 Ark. 360, 58 S.W. 1050; Coles v. Madison County, 1 Ill. 154, 12 Am. Dec. 161.
The finding of the Chancellor on conflicting evidence is conclusive upon the question that it was not a contract between the appellant, Lilly Nubby, and appellee, Lonie Scott, to divide whatever was received by either. The finding of the trial court is presumed to be correct unless the contrary appears in the record.
Smith v. Berry, 1 S. M. 321; Effinger v. Richards, 35 Miss. 540; Goodyear Yellow Pine Co. v. Lumpkin, 158 Miss. 578.
The evidence being in conflict, there is nothing that will appear contrary to the finding of the Chancellor. The trial court will not be held in error and reversed by this court in a finding on conflicting evidence unless the record clearly shows that his finding was wrong.
Heard v. Collrell, 100 Miss. 42; Lott v. Hull, 104 Miss. 308; Lee v. Wilkerson, 105 Miss. 358; Bland v. Bland, 105 Miss. 478; Grace v. Purce, 127 Miss. 831; Crump v. Tucker, 149 Miss. 711; Gulf Transportation Co. v. Firemens Fund Ins. Co., 121 Miss. 655; Berry v. Mattocks, 156 Miss. 425; Bradley v. Howie, 161 Miss. 346; Cole v. Standard Life Ins. Co., 170 Miss. 330; Mays v. Howie, 98 Miss. 300; Freeman v. Freeman, 107 Miss. 750; Steede v. Ferrer, 150 Miss. 711; Leavenworth v. Hunter, 150 Miss. 750; Stevenson v. Swilley, 156 Miss. 552; Bradbury v. McLendon, 119 Miss. 210; Bacot v. Holloway, 140 Miss. 120; Quine v. Wolcott, 165 Miss. 325; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441; Hibernia Bank Trust Co. v. Turner, 156 Miss. 842; Pannell v. Glidewell, 142 Miss. 77; Watkins v. Watkins, 142 Miss. 210; Conn v. Conn, 186 So. 646.
The trial court did not commit a prejudicial error against the appellant as to the admissiblity of secondary evidence offered to establish the execution of the alleged instruments marked Exhibits "H" and "J" to the amended bill of complaint.
Appellant failed to prove by competent evidence the alleged contract between the appellant, Lilly Nubby, and appellee, Lonie Scott, and also the alleged power of attorney between the appellant, Lilly Nubby, and appellant, Odie Moore.
Freeland v. McCaleb, 2 How. (3 Miss.) 375; Parr v. Gibbons, 27 Miss. 375; McLeod Lbr. Co. v. Anderson Mercantile Co., 105 Miss. 498; Federal Chemical Co. v. Jennings, 112 Miss. 513, 73 So. 567.
The appellants were not entitled to recover on the alleged contract between Lilly Nubby and Lonie Scott alleged to have been executed at the Indian Agency in 1926(1) because there was no valid consideration therefor, and (2) there was no agreement therein to forbear an appeal in the proceeding to establish the heirs of Hickman Willis, deceased, and the burden of proof rested on appellants.
Presbyterian Board v. Smith, 209 Pa. 361, 58 A. 689; Saunders v. Bank of Mecklinburg, 112 Va. 443, Ann. Cas. 1913B 982; Shupe v. Galbraight, 32 Pa. 10; Clarke v. Russell, 3 Watts 213; Snyder v. Leibengood, 4 Pa. 305; Clopton v. Hall, 51 Miss. 482; Owen Tie Co. v. Bank of Woodland, 136 Miss. 114; Hoffman v. Mayaud, 93 Fed. 170; Jones v. Britt, 166 Fed. 852; Lambert v. Clewley, 80 Maine 480, 15 A. 461.
Appellants could not recover on the alleged contract signed at the Indian agency in Philadelphia, Mississippi, in 1926 because of the acceptance of the substitute contract or deed dated January 19, 1933.
Moore v. Y. M.V.R. Co., 166 Miss. 65, 116 So. 395.
The instrument executed by appellees, Lonie Scott and Marshall Scott, is ineffectual to convey the trust property or any part thereof in the hands of appellee, W.W. Pierce, trustee, because (a) the right of alienation is restricted in the trust instrument (b) the instrument was not approved by the county court of Carter County, Oklahoma, and (c) appellees, Lonie Scott and Marshall Scott due to their weakness of mind executed said instrument in ignorance of material facts with reference to the property conveyed and consequences and effect of the instrument, and of which said parties had no means of knowledge.
Stansel v. Hahn, 96 Miss. 616, 50 So. 696; Mitchell v. Choctaw Bank, 107 Miss. 314; Mitchell v. Gerwin, 73 So. 888; Cody v. Lincoln, 100 Miss. 765; Campbell v. Mansfield, 104 Miss. 533; Prewitt v. Land, 36 Miss. 495; Disbrel v. Carlisle, 51 Miss. 785; Calhoun v. Markow, 168 Miss. 556, 151 So. 547; Comrs., Sinking Fund v. Walker, 7 Miss. (6 How.) 143; Boone v. Davis, 64 Miss. 133; Coulter v. Robertson, 24 Miss. 278; Nelson v. Ratliff, 72 Miss. 656; Norman v. Burnett, 25 Miss. 183; Cudahy Packing Co. v. Miller Estate, 103 Miss. 435; Leigh v. Harrison, 69 Miss. 929; Nichols v. Eaton, 91 U.S. 716; Jones v. Harrison, 7 F.2d 461; Bowlin v. Citizens Bank Trust Co., 131 Ark. 97; Wagner v. Wagner, 244 Ill. 101; Wallace v. Foxwell, 250 Ill. 616; Hopkinson v. Swain, 284 Ill. 11; Kiffner v. Kiffner, 185 Ia. 1064; Plitt v. Yakel, 129 Md. 464; Monroe v. Dewey, 176 Mass. 184; Barnes v. Dow, 59 Vt. 530; Tally v. Ferguson, 64 W. Va. 328; Adams v. Williams, 112 Tex. 469; Wallace v. Foxwell, 250 Ill. 616; Nunn v. Titche-Goettinger Co., 245 S.W. 421; Roberts v. Stephens, 84 Me. 325; Caddy v. Linker, 100 Miss. 765; Matthews v. Van Cleave, 282 Mo. 19; Weller v. Noffsinger, 57 Neb. 455; Dickerson v. Morse, 200 Ia. 115; First Natl. Bk. v. Mulholland, 123 Miss. 13, 85 So. 11, 123 A.L.R. 1000.
The deed executed by appellees, Lonie Scott and Marshall Scott, under date of January 19, 1933, is ineffectual to convey any part of the inheritance of appellee, Lonie Scott, from the estate of Hickman Willis, deceased, a full-blood enrolled Choctaw Indian of the five civilized tribes.
Bartlett v. Oklahoma Oil Co., 218 Fed. 380; U.S. v. Black, 247 Fed. 942; Act of May 28, 1908, sec. 9, 35 Stat. 312; Parker v. Richards, 250 U.S. 235, 63 L.Ed. 954; Comr. Internal Revenue v. Brazell, 78 F.2d 768; U.S. v. Riley, 200 U.S. 33, 78 L.Ed. 154; Sec. 1080, Oklahoma Compiled Statutes 1921; Sampson v. Staples, 55 Okla. 547; Bartlett v. Oklahoma Oil Co., 218 Fed. 280; U.S. v. Black, 247 Fed. 942; Campbell v. Dick, 157 P. 1062.
The trial court did not commit error in holding that the alleged conveyance from appellees, Lonie Scott and Marshall Scott, was invalid and canceling the same.
Moore v. Vick, 2 How. 746; Wall v. Wall, 177 Miss. 743; Brown v. Wesson, 114 Miss. 216; Seleck v. Compress Co., 72 Miss. 1019; Dunbar v. Newman, 46 Miss. 231; Simmons v. North, 11 Miss. 67; 21 C.J. 83; Tally v. Smith, 1 Cold. 290, 298; 1 Story, Equity, sec. 234; Paige on Contracts 2d, page 766, sec. 470; Salter v. Aviation Salvage Co., 129 Miss. 217, 91 So. 34; McNeil v. Bank, 100 Miss. 271, 56 So. 333; Elmslie v. Mayor, 35 So. 201; Title 25 U.S.C.A., Indians, sec. 194; Allen v. Luckett, 94 Miss. 868.
The court did not commit error in refusing to permit appellants to amend the bill of complaint.
Vertner v. Griffith, 1 Miss. 415; Mortgage Co. v. Bunckley, 88 Miss. 851; Hanserd v. Gray, 46 Miss. 79; Section 391, Code of 1930; Clark v. Hull, 31 Miss. 520; Miazza v. Yerger, 53 Miss. 135.
The trial court reached the correct conclusion in the case as shown by the record.
Carr v. Miller, 162 Miss. 760; Griffins v. Martin Oil Co., 127 Miss. 606; Conn v. Conn, 186 So. 646.
The guardianship in Oklahoma is not inconsistent with the trust agreement and cannot be attacked collaterally.
Martin v. O'Reily, 81 Okla. 261; Parmenter v. Rowe, 87 Okla. 158; Bartlett v. Bell, 125 Okla. 236; 14 R.C.L. 559, 560; Campbell v. Mansfield, 104 Miss. 533, 45 L.R.A. (N.S.) 446.
Argued orally by Thomas Rhodes and Nate S. Williamson for appellant and by W.W. Pierce for appellee.
By bill and supplemental bill, Lilly Nubby (nee Tubby) and Odie Moore sought to recover from Lonie Scott, Marshall Scott and W.W. Pierce, Trustee, a one-half interest in all of the estate which Lonie Scott, through W.W. Pierce, as her trustee, had collected from the estate of her father, and from the United States Department of the Interior. Lonie's property consisted in cash, bonds, and lands in Oklahoma, and exclusive of the lands, was of the approximate value of $113,000.
Lilly's claim was based on two instruments introduced as exhibits, one an assignment made to her by Lonie at the Indian Agency in the year 1926, the substance of which is set out as an exhibit; the other a formal combination deed to a one-half interest in lands in Oklahoma, and an assignment of a one-half interest in all Lonie's property received from her father's estate. This combination deed and assignment was signed by Lonie and her husband, Marshall Scott, and was witnessed, acknowledged and recorded in the Chancery Clerk's Office in Neshoba County. There was also exhibited with the bill a declaration of trust by Lonie and her husband, conveying all of Lonie's said property in trust to W.W. Pierce, as trustee, and dated April 30, 1931.
Lonie, her husband and Pierce first filed a plea to the jurisdiction of the court, setting up the appointment of Pierce as guardian of Lonie by the probate court of Carter County, Oklahoma. The record and oral evidence was considered by the court, and the plea was overruled. There is no cross-appeal by Pierce, et al. The answer denied the material allegations of the bill, and set up that Lonie was mentally incompetent to execute the deed and assignment, and had been procured by undue influence under the plan, and through the connivance, of Odie Moore. The bill alleged and the answer admitted that Lilly, Lonie and Moore were "full-blood" Choctaw Indians, residents of Neshoba and Leake Counties, Mississippi.
The court below dismissed the bill of Lilly and Odie Moore, and appeal from that decree is prosecuted here.
These historical and undisputed facts we deem essential to an understanding of the case: In 1900 Hickman Willis lived in Neshoba County, Mississippi, and in that year consummated a tribal marriage with Lilly Nubby, and Lonie was the issue of that marriage. Some years later he removed to Oklahoma, where by government allotment he acquired lands which, from oil royalties, made him the owner of quite a large estate. Hickman contracted several marriages in Oklahoma; and in that state as well as in this, he served terms in the penitentiary. He died in July, 1925; and, in due course, proceedings were instituted to determine heirship to his rather large estate, in the County Court of Carter County, Oklahoma.
Lilly employed as her attorney Judge Roger Wilson, now deceased; subsequently Lilly and Moore also employed him. This attorney employed Ott and Adams, Attorneys, of Ardmore, Oklahoma, to assist him in establishing the claims of Lilly and Lonie as wife and daughter, respectively, of Hickman Willis.
The county court held that Lilly was not entitled to an interest in Willis' estate, but sustained the claim of Lonie, as a daughter and heir, with other Indian claimants. Subsequently, the case was appealed to the District Circuit Court, where the decree of the county court was affirmed, Lilly having joined with others in that appeal. From the circuit court, the case was appealed to the Supreme Court of that state, which appellate court handed down its opinion on October 18, 1927, In re Estate of Willis, 129 Okla. 155, 265 P. 1064, disposing of the several claims, and holding that Lonie was the daughter of Hickman and Lilly, and was entitled to share in his estate as an heir, on the ground that the marriage between Hickman and Lilly in 1900 was a valid and binding marriage, under the Mississippi law. By that opinion, Lilly was excluded as an heir, because she had not appealed. See In re Estate of Willis, 129 Okla. 155, 265 P. 1064.
The declaration of trust was approved by the probate court of Carter County, with Pierce, Lonie and her husband personally in that court; and Pierce was appointed trustee, at which time all the estate of Hickman Willis was being administered in that court.
Lilly and Moore assign and argue many points for reversal of the decree in the court below; but, as we are of opinion that the case must be affirmed on one ultimate point, we shall not state those points, or all the facts of the case.
We are of opinion that Lonie Scott was incompetent to execute the deed and assignment relied upon by the appellants. This instrument recited two considerations: (1) The assignment of 1926, allegedly executed at the Indian Agency. This agency assignment, as set forth, in substance stated no valuable or other consideration. It is now said that the consideration therefor was the agreement of Lilly not to appeal.
The court found as a fact that at the time this Agency agreement was entered into, if any such was ever entered into, the county court had just rendered an adverse decree to Lilly's claim; and that after said agreement she appealed to the circuit court. The court further found that the 1926 agreement had not been established, and further, that the weight of the proof was that the paper signed at the Indian Agency in January, 1926, was an assignment to Roger Wilson for services as attorney in the Oklahoma ligitation; and that there is no evidence that such paper, if executed, was ever delivered to Lilly, or to anyone for her. That Lilly appealed to the circuit court after the date they claim the paper was executed is fully sustained by the testimony of Earl Richardson, and by the cross-examination of Lilly Nubby. These findings of the Chancellor are warranted by the evidence, and we cannot say they are manifestly wrong; on the contrary, he seems to have reached the logical conclusion, from all the facts. At best, there was but a conflict in the evidence.
The deed and assignment executed by Lonie to Lilly in 1933 recited no other valuable consideration; the other recited consideration is love and affection of the grantor for the grantee. In other words, it must stand if upheld as a voluntary gift of lands, cash and bonds of one half the value of from $45,000 to $75,000 by the daughter to the mother.
This record shows that Lonie did not know that one-half of this estate conveyed would immediately pass, by her deed, to Moore thirty per cent, and to the attorney who drew it twenty per cent. She did not know, or have any conception of the fact, that she owned lands in Oklahoma, or the royalties thereon. She was a housewife, with a husband and children; she could speak with other Indians, conversing in Choctaw; but she could not speak, read or write English at all — never traded at the stores nor transacted any business for herself. The superintendent of the Indian Agency at Philadelphia a disinterested witness, testified that she had the mind of a child four years of age; that through years of association at the Agency they could not make her understand the necessary information and dealings, which, as the representative of the government, he tried to impart to her in her own interest. The mere fact that this deed was read to her in her native language by an Indian woman, in the presence of a number of witnesses, imparted no more information to her, weak-minded and ignorant as she was, than would reading of the Koran to a Kangaroo. We are fully persuaded that she was incompetent to execute this deed and assignment, and that the mere formal legal execution thereof is not binding upon her or her trustee. The deed was executed in the presence of Lilly Odie Moore, the beneficiary attorney and his wife, and a witness, Hardy, who was carried to Lonie's home for that purpose.
The rule in this state is to be found in the case of Clark v. Lopez, 75 Miss. 932, 23 So. 648, 649, 957, wherein Judge Whitfield said: "The principles on which the case must turn are clearly set forth in the case of Allore v. Jewell, 94 U.S. [506] 508-512 [24 L.Ed. 260], and in the able and exhaustive opinion of the court of appeals in equity of South Carolina, in Butler v. Haskell, 4 Desaus. [651] 686-716, in which the authorities covering this field of inquiry are most learnedly reviewed. The supreme court of the United States, in the case cited, announces it as settled law that `whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and reasonable application of the injured party, or his heirs, interfere, and set the conveyance aside.' Relief was granted in this case after a lapse of six years, and, though valuable improvements, to the amount of $6,000, had been made by the purchaser, Judge Story, in Harding v. Wheaton, Fed. Cas. No. 6,051, 2 Mason 378, felicitously states the rule as follows: `Extreme weakness (of mind) will raise an almost necessary presumption of imposition, even when it stops short of legal incapacity; and though a contract, in the ordinary course of things, reasonably made with such a person, might be admitted to stand, yet if it appear to be of such a nature as that such a person could not be capable of measuring its extent or importance, its reasonableness or its value, fully and fairly, it cannot be that the law is so much at variance with common sense as to uphold it.'" See, also, Austin v. Von Seutter, Miss., 139 So. 174.
We have left out of consideration the fact that this government has undertaken to throw about members of the Indian race its strong arm of protection, because of the generally recognized fact that the members of the race are easy victims of the wiles and persuasions of the wary and intelligent, as well as their inordinate desire to gratify at any cost their immediate wishes or whims; but have treated the case on the broad principle of equity herein set forth.
We are of opinion that the grantor, Lonie, is shown to have had no conception of the property conveyed or of its value, and it was a voluntary gift so far as she was concerned of thousands of dollars to strangers.
Moore was to receive from Lilly thirty per cent of the property conveyed as a attorney-in-fact. He was not an attorney at law. The attorney at law who drew the deed, and his wife who was a witness to its execution, did not testify in this case, but he afterwards cancelled his contract. The effect of Lonie's deed and assignment was to strip her of the assurance of a comfortable living for herself and family as provided in the Oklahoma trust agreement naming Pierce as trustee, without the knowledge of her trustee.
Affirmed.