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‘ . r) s

 O - ' .
. KENTUCKY COURT OF APPEALS.
No. Edd.
LEXINGTON & EASTERN RAILWAY COMPANY APPELLAHT.

VS.

EDWARD L. NAPIER'S HEIRS &c. APPELLEES. '
SUPPLEMENTAL BRIE? FOR APPELLEES.

MAY IT PLEASE THE COURT: ‘

This is an appeal prosecuted from a Judgment of the
Perry Circuit Court, rendered.an the 23 day of May, 1915. The
Judgment will be found at pages 2#2 to 250, inclusive, of the
transcript.

By the judgment appealed from, the lower Court ad—
judged invalid, a certain deed of conveyance executed by Edward
L. Napier and his wife, Polly Napier, on the 22 day of Septem—
ber, 1910, which conveyed to Appellant, a right of way through
their farm for a standard gucge railroad, and the judgment also
adjudged invalid, the executory contract, executed on the first
day of September, 1910, between these parties, providing for
the sale and conveyance of the right of way in question, upon
the groudd that the evidence in the case warranted the conclu—
sion that Edward L. Napier, deceased, was, on the first and
twenty second days of September, 1910, and for some time prior
to those days, of unsound mind, incapable of knowing the value

 .. q
2
of his property and unable mentally to understand the nature of
a deed of conveyance for real property, or a contract to convey
the same or the effect of either, or the effect of a right of
way for a railroad through his farm; that the sum of one Thoum
sand and Twenty Dollars, paid to the deceased, Edward L. Napier,
by the Appellant, Lexington & Eastern Railway Company, on the
22 day of September, 1910 for said right of way for its railroad,
set out and described in the deed of conveyance, executed by
said Edward L. Napier and his wife, Polly Napier, on that date,
was wholly inadequate to compensate him for said right of way
and the incidental damages; that the value of said land and
the damages to the adjacent land by reason of the occupancy of
said strips of land, for said right of Way and the extra fencing
required, are Twenty Five Hundred Dollars.

The lower Court further adjudged from the evidence,

that said strip of land was necessary for the Appellant, Lex-

. ington a Eastern Railway Company to have for its right of way,
and that said Railroad Company had constructed its track upon
said land and operating its cars and engines thereon, and was
in possession thereof, and adjudged that said strip of land be
appropriated to the use of Appellant, Railroad Company, for its
right of way.

It further adjudged that Appellant Compensstt Appelv
less for said strip of land, in the sum of Twenty Five Hundred
K Dollars, the value of said land, and the direct damages to ad—
Jacent land by reason of the occupancy of said strip of land
for said right of way, and the extra fencing required, and the
damage to his adjacent land; that the Master Commissioner-of the
Perry Circuit Court convey the title of said strip of land to
Appellant when this amount Was paid; that the One Thousand and

 0 q '
3
twenty Dollars paid on the 22 {My of L‘Ecptmabar, 1910, be crech-
ites‘z on {said :_.uammt of Twenty Fiv-a Hundred Dollars}.

The farm thr‘ougj‘x v'rhicl; the r:L_:;;1:-:t of” away is locfimd,
cozamlins about; Six litmalrad (600) acres of lama, and that pertion
01” ii; a‘i'i‘eoterl, frents along; the Mum}; For}: River for a}, (1151;13:1ch
as? more than :4, 11.1119 ,. and as the riggmg. of V‘Q'ny traverses the (m.—
‘tim farm calm-15 the river, tilfi di:3t:mee through mm "farm is
more than 1,113.63, eamd cunt:.«.ins Sen {and onewfifit-Erz, (10954.!) acres,
the twat 01'" which 1;: carved out of vary fine, rich, river bottom
land. I

There are about :533V911ty Five {75) acres. of 131155 “not-
1:02;: land, and 13m 1033251031 of the rig-3,1; of '..my, bisects; it 1:530
tam mambo-w :égtl‘ilg-s, {mm-«,1; ir.¢»r0-thfi..:m.i:~s 01‘" if; be 111;}; maxi: to 17,-36’s
river, sun} on flue Gyptiatiffie ;:~:i::§.£: of my r;a..t.:%.3.r'o:;a,:i brunet; from 1:33.13
dwelling, h-‘fitf’n um 01Han—121.1114}33:53:21 or; 12,37: 15"":rm, :.u-H. {3.21 ”9:13: 05:30--
site side of fine 131216}: from tin-3 001un frog-L6,, ZIP(3. fine: ff‘LhilI‘fVlll
fire-ac}: is; Bibhev in :1, out; or or; :.L fill, ties: (21433.56: ‘1:1.::;:;.;.2~2ce
siegrnggg; “aim; Level. land, am}. tum: ye:::m3.:i.mei luxizitiml of the rig-3m;
of ::.-::y, tie-«animus: if; zumesssxnxry m» camstrzacz'E fag-zeta ::.: Mtg-,6?
sail-10. of @125; :‘i,;:32.t 03.“ any, a :1:.334158 0f ::y‘; leaf; :1 mile. sand
or. {31%/£3 avg-1w 01‘ facts-s, 33:51.: lower Court Ital-:3, tin-13‘?) One TL’hcmmnd
mu: ‘,5."iri.f-Il133‘ ';DOLngme did nae-‘::. C(Jliiixinlfli‘lte fine deceased, .:;:dtvn'md 3;.
Xi’awmr, for this strip of L21. .;m‘i *3.5,'1)K'-13_.Ceki ;'m ‘01sz ‘.;";i,,'j;g_‘;,t .»:.a 1'." via-w (3‘:
{mt ;qu citaiazzgri’wed in “we lead, an}. (3:.; L‘m‘e e‘v":‘u1e:..;ce 'erzu'; cans-.L.;-
ui’te‘fi thin; $_.-1c: :~:s~i-:1 Eldrrcjx’gl In: limpint‘ 2mg: fist, fine {31216 of ”the 9X-
emztion of tun": cl:,>1szm.«:t ,3 use (lead fan? tam z'i,3;;1; u 1“ -:; 3, my
Ems-50mm}. Illinil, 1.11m unipolar 3-%é3..‘;‘:5£l.llff ‘uo and»:"sa‘iwul “the nature 017'

:42, alum} m? Cannmymce 5.7m" {‘::le 3=m1=.—-2r'13y, and “52.3.0. furtuaw fact
bait; Amwllnnt '.’":i,3~;s riggmiswzcl nf Shit} face at the time of the
execution of 911,258, 13:19 evidez-zce war-ranted the Court in fiudfmg

 5 .
O I
4
that Counsel for Appellant Railroad Company, who Was present
when said deed was executed, knew that the deceased, Edward L.
Napier, was incompetent to make a deed at that time; that the
deed would not be binding and that he ought not to take it,
but that the remedy was to condemn the land through the process
of the Court, cancelled said deed and contract. '
Learned Counsel for Appellant has made an elaborate
statement of the case in his able brief filed herein, and we
deem it unnecessary to make further statement of the case in '
' this connection, and will take up for discussion, the questions
relied upon by Appellant for a reversal of the ease.
we will take these questions up for discussion, in
the order taken up by Counsel for appellant, and will first
discuss the mental unsoundnesedof Edward L. Napier at the time
he executed the contract and deed in question.
ARGUMENT.
I
we think the terms of the judgment appealed from in
disposing of the issues joined, clearly is within the rights
of the parties as presented by the pleadings and shown to exist
by a preponderance of the evidence.
It was the opinion of the Chancellor from the evidence
proven in the case, that Edward L. Napier, deceased, was, on
the first and twenty second days of September, 1910 and for
some time prior to those days, of unsound mind, incapable of
knowing the value of his property and unable mentally to un— 1
derstand the nature of a deed of conveyance for real property,
or a contract to convey the same, or the effect of either, or

 O O
5
the effect of a rignt of Way fur a railroad through hia farm.
We think the proof Warranted the trial Court in finding thig
said state of condition to exist with this old man. In fact
we feel that the evidence in tna case warrant us in insisting
that the evidence upon this important issue is overwhelmingly
in support of the lower Courfi'u finding. It is in proof in
the record of this case, finat the deceaaed, Edward L. Mapisr,
at times had no wind; that at enc time did not knww a mule
from an ox; finat on one occnaion, Jnan his neighbor'a mule
strayed awiv and Wandered onto the guid fiagicr's farm, tnafi

‘ he argued vifih his neignbor when he Ceflfl for his mule, that
the mule wag &n OK, or ufi laugh he seemed to think tmat it
was an ox after it had bean caught. 39 did not know hia close
neighbors finen he saw them gaunt his place. 1k did not knaw
when his sun died, whwt flue pcuplu sure doing share, when fihey
buried him.

~ It 13 unneeded afi the outget by GOUHHul for Aypallant
Railroad Cmmyamy, in him brief? that the preyondcraflee of the
yroof fairly snows fihat tha mind of the deceagad, Eamnrd L.
Nuyier, had been to an extent, imguixed previous t0 the trans—
Qctions 0f seytember firat and twwnty saCOnd, 1910. Re @083 not
take time, he gays, t0 debmne tiw sufficiEncy of the ficstimo—
my on this poinfi; tnut tufl 0 age of gucn mental unsoundnfiaa ifi
obscure.

We cio 1101;;Jozider‘ tzfimt 3L9 due 3 rnrb 'umkw 'tiLNB to deénxte
the sufficiency of the tdstimony on tmis vital quemtion. W6
introduced fifteen witnusaes, all 0f whom were the neimgbors
and acquaintances of Edward L. fidpier, and included his vidaw
and four sons, and Each of tnem proves that n13 mental condi—

 D to

6

tion was bad; that he was not mentally capable of taking care

of his business affairs.
In R.C. Napier, the first witness introduced, stated in

, substance, on this question, as follows:
The mental condition of his father, Edward L.
Napier, at the time the said deed was taken, was
bad; that he did not have sufficient mental ability
to understand the nature and effect of a deed of
conveyance, or contract, nor sufficient mental ca—
pacity to know or understand the value of his land
or property, nor to attend to the ordinary affairs
of life; he was eighty five years old; that about
five years before his death, his mind began to fail
and up to within two and a half years of his death,
he had a severe Case of fever, and after that time,
he never had sufficient mind to transact any busi—
ness of any kind; never had any judgment about any—
thing after this sickness; that the first time he
detected his father's mind being so bad, he came
down to his father's house and he did not know him,
and asked who he was; that he would talk about mak—
ing trips; about being in Beattyville, sixty miles
away; about being on the Cumberland River looking
for log Jobs, where he had never hauled a log in
his life; that he had a fine farm on the North Fork
and spoke of it as though he was away; that he owned
a farm on Gay's Creek, Where he did not own land at
all: that he would feed his mule four or five times
a day; that at times he Would argue that he was not
at home, and they would have to take him out and
show him the grindstone; that he had to he watched
' continually to keep him from leaving home.

(Transcript, pp.39,40,4l). '
2— Pally Napier, widow, who testified in substance on

this question as follows: '

She states that she was present when the deed
for right of way was executed; that her husband did
not know anything; that he had not known anything
for three years before.he died; that he did not
know his neighbors and did not know his children;
that he did not have sufficient mind to attend to
the ordinary affairs of life and to take care of
himself; that they had to follow him everywhere he
went; that he did not have mind sufficient to feed
his mule; that he would go out to the barn and
throw the trough full of corn; that he did not
understand what he was doing when he made the deed.
. (Transcript pp.52—3).

 D o
7
3— Woolery Napier, a son of EdWard L. Napier, and one
of the Appellees, who testified in substance as follows:
He says that the mental condition of his father
at the time the deed for the right of way was exe—
cuted, was bad; that he did not have mental capac~
ity sufficient at the time the deed was made, to
know or understand the nature and effect of a deed
of conveyance or the value of his property; that
his mental condition had been for about three years,
bed; that about three years before that time, his
father took sick and had not had any mind Worth
anything since; that since his father's sickness,
up to his death he did not have sufficient mental
capacity at any time up to the execution of the
deed and on up to his death, to attend to ordinary
affairs of life and take care of himself.
(Transcript pp. 55—56).
#~ Steyhen P. Napier, a son of Edward L. Napier and
one of the Appellees, who testified in substance as follows:
That his father's mental condition on the day
the deed was executed, was bad; that he did not have
any mind worth anything; that he did not have mental
capacity to understand the nature and effect of a
deed pr centract, nor had not had for the last three
or four years; that he did not have sufficient mind
or mental capacity to attend to the ordinary affairs
of life, and take care of himself and had not had
for seVersl years; that he thought he was away from
home and would tell his son that he had to go home,
when in fact he was at home; that his home was on
the Middle Fork Where he had lived thirty years ago;
would hardly ever know his son; lots of times he would
tell his son that he had made some big trip away
somewhere and.Was worried to death; at times when
he would be talking to his son, he would suddenly
begin talking tpuhim a though he Wes some one
, (/ 1 ML
else; that the enuseeiécondition of his mind was
regular; that his mind began failing in his sickness;
that about three years before, he had 3 spell of
sickness and.sfter that, he had no mind hardly at all
and continued that way till his death; that he Would
take a Wild spell along and they would have to hold
him; that at times he would so half a mile from home
and say that he was going home and they would have
to follow him and take him back; that when he was
in his best condition, he never would know his son,
Stephen; that he said he had not made any deed.
(Transcript pp. 62—65).

 8
5——, George W. varsole, who testified in substance
as follows:

That he lived about a mile from where Edward L.
Napier lived; had known him forty years; had seen
him frequently during the two or three years imme—
diately before his death; that his mind was not
good in September. 1910, and for two or three years
before that time; that he did not have sufficient
mind to attend to the ordinary affairs of life and
take care of himself: that when he met Edward L.
Napier, he did not know the witness; that after
witness would talk to him and tell him who he was,
then he would ask the witness whore he lived, and
he would tell him he lived up st the some old place
where he had for several years; that then he would
tell the witness that be was badly womied; had
been on a journey and was just getting back home;

‘ that when William Napier, a son of Edward L. Nspisr,
was buried, he did not go to the graveyard, but
when the witness returned, he asked him who all
that was coming; said he had seen tncrc all day
by himself, but there had been a crowd of people
there at his heme all day; that no did not real"
ize the cause of the crowd being there; that he,
witness, hardly ever met Eduard L. Hopier with6WV¢

» him saying something that indicated he was wrong;
that when he went to Eduard's house to get his mule
that had strayed over onto his place, he seemed to
think the mule was an ox.

(Transcript pp. 68—69).
6— James isltner, who testified in substance as
follows:

That he saw Edward L. Napier soverul times in
September, 1910, along about the time the deed for
the right of way was made; saw him the div after
the deed was made, the condition of‘his mind was
bad the next day after the deed Was made, he did
not recollect making it; the cOndition of his mind
was bad for two years before the execution of the
deedd he did not have sufficient mental capacity
to understand the nature and iffect of a deed or
contract, or understand the value of his land, nor
did not have sufficient mental capacity to attend
to the ordinary affairs of life and take care of
himself; the deficiency of his mind was continuous;
does not think he had ever had his proper mind withé
in the last two or three years; that he would claim
that he was going home when he Was already at home;
claimed he had big forms away off somewhere; talked
about planting corn after corn had been laid by;
said Bob Napier had sold the right of way through

 g;
his_fsrm,thirty feet wide; half the time when the
witness came to his home, Edward L. Napier would
not know him, though he had been acquainted with
him thirty five years; lots of times he did not
know his own children.
(Transcript pp. 73—75).

7— Lewis Deaton, who testified in substance as

follows:

That he had known deceased, Edward L. Nap—
ier before his deatu, fifteen years; had been a fre—
quent visitor at his home and had seen him often
during the month of September, 1910; that his mental
condition was bad; had been bad for three years; he
was not capable of transacting any business for the
last three years, at any time; he Was not capable
of knowing or understanding the effect of a deed
of conveyance or the value of his property; nor oe—
psble of attending to the ordinaryszeirs of life,
or taking care of himself during the lost two or
three years; that he had not seen him for the last
two or three years before his death when he was in
his right mind; "Always he; to.tcll him my name
every time I saw him and sometimes it would not be
more than five minutes till he would ask my name again.
I met him one day out there in the road and asked him
how he was getting along, and he said not much,
he said he was just getting back from London and ~
was awfully tired, when he had not been away"; he
looked to be mild in appearance and different to
whet he did before his mind left him".

(Trans. pp. 78—79).
8— Preston Napier, a son of Eduard L. fiapier, who teem
tified in substance as follows:

That his father had no mind at all on the 22 day
of September, 1910, and for two or three years before
and on up after that time until his death; that his
mind was bad all the time; that sometimes you could
speak to him and he would answer you as if he knew
whet you said, and then he would branch off on some»
thing else; that he could not understand the nature
and effect of a deed of conveyance and the value of
his property at the time he executed the deed for
the right of way, or at any time, for the lost two
or three years before his death.

(Transcript, pp 83—84).

 10
9» Andrew J. Witt, who testified in substance as
follows:

That he Was a neighbor of Edward L. Napier;for—
ty seven years of age, and acquainted with him for
thirty years; lived within six miles of him during
that time; saw him regularly during the tWO years
before his death; was acquainted with the condi—
tion of his mind for two or three years immediu
stely before his death and during the month of
September, 1910; that it smeared to him that Ed—
ward L. Napier had lost his mind: that he didn't
think he was capable of attending to any business
affairs or understand the nature or effect of a
deed of conveyance or understand the value of his
property; that at times when he met the old man, he
would talk like he had a good mind and in a few
minutes he Would be talking about something else;
that his mind had been in this condition for about
two years.

(Transcript pp. 87—88).
10- Dr. H.P. Duff, who testified in substance as
follows: ‘

States that he was acquainted with.3dward L.
Napier about five years; that he was his regular
family physician for about five years; that he
rendered him medical treatment at different tines;
that he had diarrhiea, insomnia, nervousness and
pneumonia; that during the time, the condition of
his mind was very bad; that his mind was weak and
the general talkivns that he Wes losing his mind;
that he made examination of Edward L. Hepier's
mind to ascertain what the trouble WnS'With his
mind, and found it to be very much unbalanced,
due to senility or old age; that he believes
his age was eighty six; that he examined his

. mind before and after the 22 day of September,
1910, and it seemed to grow worse; that he made
diagnosis of the condition of his mind and con—
firmed it by physical and oral examination; had
several conversations with him; that from his
knowledge of Edward L. Nayier's mind, he did not
think he hnd the mental capacity before and after
the 22 day of September, 1910, to understand the
nature of a contract or the value of his property.
anscript, pp 151—1324.33 ).

 ll
11— Ace Mhney, who testified in subetance as follows:

States fihat he had been well acquainted with Ed—
ward L. Napier fifteen or sixteen years; that he was
acquainted with him during tne year 1910; that he
lived about one mile or a mile and a quarter away
from him; that he married a grand—daughter of said
Equrd L. Napier; that he was acquainted with his
mental condition; that at times he had no mind at
all; that he saw him part of the time; that he was
at witness's houee end talked like he had his right
mind five or ten minutes; then he would branch off
and say that he had a farm back on the Middle Fork;
that mexeua moving back to it, and he claimed that
he had a fine apple orchard and big log house on
this firm; that 38 did.nofi nave any farm on the mid—
flle Fork; that he did not own any land other than
the farm wnere he liveé; tune the deceased would
claim bunt he was juet getting back frem a Journey
uni was very tired; that me claimed twat several
times in talking to the witnees; that he was a very
weak man pnyeicelly; finet from his acquaintance
with his mental and physical condition, he did not
believe that Edward L. Napier had sufficient mental
capacity during the year l910, to enter into any con—
tract affecting his real estate or ;ersonal proyerty.
Transcript pp 210—212).
l2- Russell Wooten, who testified in subetence as

follows:

That he Was acquainted with Edward L. Napier,
during tne yelr 1910, and saw him often during teat
year, lived about cue mile and a half from him then;
was acquainted with his mental and physlmeal nonli—
tion and taut it was not good; that from his acquaint-
ance with the condition of EdWard Lg Napier'e mind,
in his opinion and judgment, he did not have suffi—
cient mental capacity and power to transact any
business or enter into any contract relative to the
Sale of his real or personal property; along about
August, 1910, he seemed to be in very bad mind.
Transcript, 9p. 223-224.

 n 6.
12
13— Clark Evereole, who testified in substance as follows:
' That he is fifty five years of age; that he knew
Edward L. Napier about thirtnyive yearo before he
died; that he was acquainted with the deceased Ka-
pier during the year 1910, cow him often during that
spring and summer; thot he Woo acquainted with his p
mentol condition during the year 1910 and about Au-
gust of that year, and that his mental and phyeicol
condition was bad; that in his opinion and Judgucnt,
from his acquaintance with his mental and phyoicol
condition, he did not consider him mentally copuble
or consider tnot he had sufficient mental capacity
to enter into any contract for the sole of property
and take care of his financial interests; taut his
mental condition continued from that time on up until
his death; that for about three or four yours before
he died, his mentol condition W33 bud moot all the
time; that sometimes he could talk pretty sensible
talk. but you could not talk Vita him long before
you could see that tuere was something wrong with
his mind. ' -
(Transcript pp. 227—228).
19- Ashford Napier, who testified in eupctance as follows:
That he was acquainted Witt Edvard L, Rapier,
deceased, during his lifetime; that he saw him all
along in 1910, 1911; that he Woe acquointcd With
his mental and physical condition along during the
year 1910, and about dugout, 1910; that he Nos ac—
quainted Witn hie mental and physical condition for ‘
some few years before 1910; that his mental and
physical condition were bad; that he does not think
he was capable of transacting any tueinees at all
during the last few years of his life.
(Transcript pp. 232—233).
15— A.D. Spencer, who testified in substance as follows:
That no is forty three years old; that he had
known EdWArd L. Napier ever since he could remember;
that he Was acquainted with his physical and mental
condition for the last few years before he died, and
especially during the year 1910, and about August,
1910; that his physical and mental condition during
the year 1910, Was very bad and continued had up
until his death; that something like four or five
' years before 1910, he observed something wrong with
his mind; that in his opinion he did not think he
was mentally capable nor had sufficient mental ca—
pacity to enter into any contract relative to the
sale of his property, or do any business and take
care of his financial interests during the year
1910, and about August, 1910.
Transcript pp. 235-236.)

 ‘o .~.
13
We introduced fifteen Witnesses, most of whom were

* the deceased, EdWard L. Napicris neighbors, including, however,
his vidwv and four sons and his family physician, Dr. Duff, all
of when testified to the nnsoundnoss of his mind and.nis mental
incapacity to attend to the affair: of life; that he did not
have mental capacity to know the value of his property or the
nature and effect of a deed of conveyance for real property.

It is conceded it the outset, finflb tne preponderance
of the proof fairly shows that the deceased, Edvard L. Hapier°s
mind had been impaired to an extent, previous to the transac—
tions of Septemrcr ;, and September 22, 1910; that the Cause
of any such mental unemnnine get-2'. is 01250 are; that Dr. Duff, who
is not shown to be a mental expert, ascribes it tc"senility'\
or old age.

It did not take a mental export to he ahie to know
that this man had become mentilly unsound and that he was not
capable of taking were a: his financial interests, These Wit-
nesses who testified to the mental incagaCity of their old
neighbor and friend, and in some instances, kinsman, the hus-
band and father, did not have to he mental experts to be able
to know this man‘s mind was gone, when his mind became so im—
paired that he dii not recognize his close neighbors and his
own children when he met them on the road aoout his place,
when he began to as 'their names and to tell them of his trips
that he had taken, that he ovned different farms when they
knew of their own personal knowledge that he had not made any

such trips as he mentioned, and that he did not own such farms
as he described to them that he owned, they soon began to no—

 0' ~ g
l#
.

ties and to realize that as was mentally,as well as physically
Worn out, dhd it soon became the talk through the community
that this once thrifty man was Jorn out. He had lived the allot—
ted three score an; ten years, yes, four score years and more,
with him nod come and gene. A: the date of taeae transactions
now questioned? EQWacd l. Rapier was near eighty five years of
age. Wloh the natnrol effects of senility, a gliniul and pros—
tratlng disease had combined to reduce and.cnfeeele him in
mind and becw, till he rad relaxed amen mental unsoundness as
rendered him incapable of taking care of his property rights,
and he was not hound by the contract entered into with Appel—
lant on the first day of September, 1910, or the deed for the
right of way executed the 23 any of Septeaber, 1910, and as
Appellant had knowledge of his mantal unecundnees at toe time,
and paid him an inaaeguate grins for his proyerty, as the
proof in this case abuodantly shows, and whims we will furs
ther filscfiss unier that subject, the contract and deed in
due stion, shoula‘, more been ":a‘ii'iealleal.

limit e'iiideiaw ..ova we was tire- .»._~.:;.cllazrt had infor-
mation oi the mental ansoundness of deceased, ldwnrd L. Napier,
at the time oi Lhmue tr-nSaations?

0n tale subjscb, 3.3. Rapier testified as follows:

”I tell Jesse morgan that file old man Napier was

' incompetent to make a deed; that the deed would

be no good and not to take any deed, condemn

the land through the channels of the Court.”

(Transcript pp #6 and 47, at bottom of page 46'

and top of page 47).

Clark Eversole, a Witness introduced for Appal—
lees, testified as follows: .

"For about three or four years before he died

——-—— his mind was bad during this time, most

all the time. Sometimes he would talk pretty

sensible talk, but you could not talk with

 O .
15

Kim long before you would see there woe some—

thing wrong witn his mind".

(Transcript, pp a27—3).

3.0. Colvoll, Who Was employed by Appellant and
was ite agent, man who, as Deputy County Court Clerk ofFPerry
County, took the acknowledgment of the deed in queetion, and
who was introduoad for the Appellant, 03 Cross Examination,
testified in part as follows:

"Q. Was it not a matter of common,knowledge,

years before that in that neighborhood, that

the all man Napier bod scarcely any mind What—

ever, and had to be attended to just like a

(Hiilo?

A. That 1735: the country talk".

Transcript (p; 120).

Jesse morgan, attorney for Appellant and who was
present when the deed was executed iufi who was introduced by
Appellant, testified on Croas EXumiwn ion, in part, as fol—
lowo:

"Q. Difln't iry of them inform you that the old

man, BEL Novice, had no mind?

A. After one contract was taken, at the time I

want to take the deed, R.C. rapier told me that."

(Transcript pp 101),

So the proof is oomolnolve on the queetion that the
Appellant was fully apprised of the unsound mental condition
of Edward L. Kayior at the time this deed was executed for
tne right of way, and must be cnarged with full knowledge
of thie fact and acted at its own peril.

The right of way which Appellant sought to Require
from EdWord L. Napier Was, we concede, absolutely essential
to the proper construction of its railroad and the decedent
and his present heirs and representatives were never in a po—

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16
eition to prevent tne acquisition of_it. If it had not been ac—
quired by contract. manifestly, the Apyellant ReilWay might and
could L1V€ resorteo to condemnation proceedings to acquire the
necessary rigub 01 Way, in fact tLob Wis its only remedy to
secure in from one laboring under a disability, as Wua the ease
in the preeent instance, And as was suggested to the represenu
tative of Appellans by 3.6. Napier at the time the deed in
question was executed.

So, summing up the whole case, we Lave a scrawnat ’

' singular stake 0f facts. Conueding that Appellant had a right
#0 acquire swid right of may by condemnation proceedings,
though it fiid not do that, bum secured it by a