Dailey v. Kastell

• Decision Date: 09 January 1883
• Citation: 56 Wis. 444,14 N.W. 635
• Parties: DAILEY, BY HER GUARDIAN, v. KASTELL AND ANOTHER.
• Court: Wisconsin Supreme Court

56 Wis. 444

14 N.W. 635

DAILEY, BY HER GUARDIAN,

v.KASTELL AND ANOTHER.

Supreme Court of Wisconsin.

Filed January 9, 1883.

Appeal from circuit court Washington county.

This action was brought to set aside and cancel certain conveyances of land. It appears from the pleadings and evidence that in 1876 the plaintiff, Nancy Dailey, who was then between 75 and 80 years of age, owned and resided upon 40 acres of land in Washington county. Two of her children resided with her. These were Jane, then about 35 years of age and unmarried, and John, who was imbecile. During that year she procured one Seabold to draw a conveyance of her land to Jane. The consideration expressed therein is “five dollars and the faithful performance of a certain agreement.” This instrument is otherwise in the usual form of a deed of warranty, and was signed and acknowledged by the grantor and left in the custody of Seabold. In September, 1879, the defendant John G. Kastell intermarried with Jane Dailey, and at some time thereafter, probably during the same year, procured such deed from Seabold. The complaint alleges non-delivery of the deed. Whether it was delivered to Kastell with the knowledge and consent of the grantor is one of the questions of fact litigated on the trial. In September, 1880, Jane conveyed the land to her husband. The same consideration is expressed in this conveyance as in that from the plaintiff to Jane. Both of said deeds were then recorded in the proper office. Jane died in March, 1881. On the third of October, 1881, the plaintiff executed a quitclaim deed of the same land to the defendant Kastell. It is stated therein that she executed it to correct an apparent misnomer in the deed to Jane, in which she is named Ann Dailey. Kastell thereupon executed a mortgage for $1,000 to the defendant Mrs. Bitz on the land in question and another 40-acre lot. Of this sum $600 was loaned by her to Kastell some time before, and was secured by a mortgage on such other lot. That mortgage was released by Mrs. Bitz, and an additional $400 loaned by her to Kastell when the $1,000 mortgage was given. In February, 1882, the county court adjudged the plaintiff incompetent to manage her property and business, and appointed her son Thomas Dailey her guardian, who by leave of court immediately thereafter brought this action to set aside and cancel all of the deeds above mentioned, and to free the land from the incumbrance of the mortgage of Mrs. Bitz. The grounds alleged for relief are (1) that the deed to Jane was never delivered to her; (2) that the plaintiff was mentally infirm by reason of her great age and both conveyances executed by her were obtained by fraud and undue influence; and (3) that both defendants had knowledge of all the facts which render these conveyances invalid. The answers of the defendants deny the existence of either of these grounds for relief.

After trial the circuit judge duly filed his findings of facts, and conclusions of law, as follows:

FINDINGS OF FACTS.

“1. That the said Nancy Dailey is as well known by the name of Ann Dailey as by the name of Nancy Dailey.

2. That the deed of the premises described in the complaint, executed by said Nancy Dailey, by the name of Ann Dailey, on the first day of May, 1876, and placed in the hands of said J. E. Seabold, was subsequently delivered to the grantee, Jane Dailey, during her life-time, by the directions and order of the said Nancy Dailey; that said delivery took place prior to the conveyance of said land from said Jane to her husband, the defendant John G. Kastell.

3. That at the time of the execution of said first above-mentioned deed, and of the delivery thereof to the said Jane, the said Nancy was of sound mind, memory, and understanding, and mentally competent to transact her own business, and was free from any undue influence whatever from said Jane, said John G. Kastell, or any other person.

4. That the consideration for said conveyance of said land to the said Jane was the love and affection which the said Nancy bore towards her, as well as the undertaking on the part of the said Jane to support and maintain the said Nancy, and her said imbecile son, John, during their natural lives.

5. That on the fifteenth day of September, 1880, the said Jane, for a good and valid consideration, by warranty deed, conveyed said premises to said defendant John G. Kastell, her then husband, and that said John G. Kastell immediately thereafter took possession of said premises, claiming the same under said deed to him, and has ever since been in the uninterrupted and undisputed possession thereof, and has made valuable and permanent improvements thereon, to the value of $300.

6. That as the consideration for said conveyance of said land to him, the said John G. Kastell, with the assent and approval of the said Nancy, agreed to and did, in the place and stead of the said Jane, assume the support and maintenance of the said Nancy and her said imbecile son, John, for and during the balance of their natural lives; which support and maintenance the said John G. Kastell has faithfully given and furnished to the said Nancy and said imbecile son John, from said fifteenth day of September, 1880, up to the commencement of this action, and until he was prevented by said guardian, and is now, and always has been, ready and willing to continue such support and maintenance, and which support and maintenance has been in all respects suitable and proper for said Nancy and said John, and has been to the entire satisfaction of the said Nancy,

7. That from said first day of May, 1876, to said fifteenth day of September, 1880, the said Jane, before her marriage to said Kastell, and she and her said husband after their marriage, supported and maintained said Nancy and her said imbecile son, John, to the entire satisfaction of the said Nancy, and in a manner suited to their condition, and in every respect complied with her agreement for their support, during all of which time the said Nancy was of sound mind, memory, and understanding, and mentally competent to transact her own business, and free from any undue influence whatever from said Jane, or her said husband, John G. Kastell.

8. That on the third day of October, 1881, the said Nancy Dailey, to correct what was then supposed to be a mistake in a prior deed, and to remove any supposed cloud upon the title to said lands, executed and delivered to said John G. Kastell a quitclaim deed thereof, to the end that he might make said loan of $1,000 and secure the same by mortgage thereon, at which time the said Nancy Dailey was of sound mind and memory, and mentally competent to transact her own business, and understood and comprehended the legal effect of said deed, and was free from any undue influence whatever from any person whomsoever.

9. That all the acts of the said Nancy, relative to the various transactions aforesaid, were free and voluntary, and were not procured by fraud, deceit, or undue influence.

10. That on the fifteenth day of October, 1881, the said John G. Kastell, then being the owner in fee and in possession of said premises, made, executed, and delivered to said defendant, Mary C. Bitz, a mortgage in the sum of $1,000 on the same, together with other lands, and which said mortgage was given to secure the payment of a loan of $1,000 made prior thereto by the said Mary C. Bitz to said John G. Kastell, and that all the material allegations of the answer of the said John G. Kastell are true as therein alleged.

11. And since the said defendant John G. Kastell has in his answer herein, and also in open court, declared his willingness to secure to the said Nancy and her said imbecile son, John, their support and maintenance, by agreement secured by mortgage on said premises, I find the same to be equitable, and direct that the same be done accordingly.

12. That at the time of the execution of said $1,000 mortgage the said Mary C. Bitz had no knowledge, either actual or constructive, of any fraud perpetrated by any person in relation to the obtaining of the title to said premises from the said Nancy Dailey, nor as to any lien, either legal or equitable, of the said Nancy...