Andrews v. Flueckiger

• Decision Date: 07 January 1919
• Citation: 170 N.W. 256,168 Wis. 348
• Parties: ANDREWS v. FLUECKIGER ET AL.
• Court: Wisconsin Supreme Court

168 Wis. 348

170 N.W. 256

ANDREWS

v.FLUECKIGER ET AL.

Supreme Court of Wisconsin.

Jan. 7, 1919.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Action by Cora M. Andrews against E. D. Flueckiger and another to foreclose a land contract. Judgment for plaintiff, and defendants appeal. Affirmed.

The plaintiff, Cora M. Andrews, and one Avis L. Chapman, were sisters, and lived together at all the times here in question. On August 8, 1907, Mrs. Chapman then held the record title to about 40 acres of unimproved land near the city of Beloit, in Rock county, Wis. Plaintiff, Mrs. Andrews, at that time held a mortgage against the same, executed to her by Mrs. Chapman. On said date a land contract was entered into by which the plaintiff and Mrs. Chapman agreed to sell, and the defendants E. D. Flueckiger and E. J. Flueckiger to buy, the said real estate upon the payment of $1,000 at or about the time of the conveyance and the balance of $7,400 on or before December 1, 1907, with interest semiannually upon any balance unpaid. No more than the $1,000 was paid on the principal sum, but defendants continued to pay interest thereon and in advance; the last payment being January 1, 1916, for interest up to July 1st of that year. The land contract contained a provision, in substance, that, upon payment by the grantees of the agreed price, the grantors, their heirs and assigns, and “all and every person claiming or to claim any right, title, or interest under them in or to the lands and therein mentioned, shall and will * * * by such conveyances, assurances, ways, and means in the law as the party of the second part, their heirs and assigns, shall reasonably require, well and sufficiently grant, sell, release, convey, and assure to the party of the second part, etc., the land in question, with covenants that the said premises at the time of such conveyance are free from all incumbrances and demands whatever, except the taxes, and with all other usual and reasonable covenants.” On October 22, 1914, Mrs. Chapman, being still the owner of the record title to said property, sold and conveyed the same by warranty deed to the plaintiff, with this condition inserted in such deed:

“This conveyance is subject to a certain unrecorded contract for a deed entered into between the said grantor Edward F. Flueckiger and Ernest J. Flueckiger.”

On the trial of this case in May, 1917, the plaintiff testified that she claimed the absolute ownership of the land and did not recognize any right of Mrs. Chapman in the land; that Mrs. Chapman, then 74 years old, was totally blind since before October 22, 1914, the date of the deed above mentioned, and that she had been living in plaintiff's home for 16 or 20 years; that Mrs. Chapman had had a great deal of trouble in her life, and had been taken care of by plaintiff, who also acted as her agent in business transactions, and then had a substantial bill for such services; that Mrs. Chapman's condition was such that she used morphine for a great many years, which was administered to her by the plaintiff; that at the time of the deed to her in 1914 she, the plaintiff, drew the deed herself, and that no money passed between them that day; that the understanding between herself and Mrs. Chapman then was that, if there was anything left of this property after plaintiff's taking care of Mrs. Chapman, she, the plaintiff, would transfer it or give it to Mrs. Chapman's daughter, Grace A. Johnston, who lived in New York City, and that she, the plaintiff, was perfectly willing that that should be done; that no one advised either of the sisters with reference to making such conveyance.

April 19, 1916, Grace A. Johnston made a contract and deed with Adams & Edgar, a firm of attorneys in Beloit, who are also attorneys for the defendants and appellants in this case; the contract reciting that the mother, Mrs. Chapman, until recently was possessed of considerable property, consisting of land, notes, mortgages, etc., and that she, Mrs. Chapman, had attempted to convey and transfer the same without consideration, while incompetent and under duress, to her sister, said Cora M. Andrews, who now holds legal title thereto and claims full ownership against and adverse to the said Avis L. Chapman and Grace A. Johnston, and that, should the claim of Cora M. Andrews not be disputed and the evidence of such ownership not set aside, Grace A. Johnston would be deprived of any right, title, or interest in or to such property, and the rights of the said Grace A. Johnston as sole heir and distributee of the said Avis L. Chapman would therefore be wholly defeated, and that she desired to set aside such deeds or conveyances and to take the necessary action in court or otherwise, and that such attorneys at law were to be employed to protect her interests and to take all necessary or proper steps, and in consideration thereof she agreed to give them an undivided one-third interest in any such property, real or personal, to which she had present title or that she might thereafter acquire. By deed of the same date she conveyed to the said Adams & Edgar an undivided one-third in and to an undivided one-half interest in the property concerned herein as well as other property. On May 1, 1916, the said deed and contract were recorded in the office of the register of deeds of Rock county, and on May 2d Grace A. Johnston began proceedings in the county court for Rock county to have a guardian appointed for her mother, Mrs. Chapman, on the ground that she was incompetent to take care of her property. July 31, 1916, this action was commenced to foreclose the land contract of 1907.

December 16, 1916, after hearing in the county court, the guardianship proceedings were dismissed; the county judge determining that the preponderance of testimony presented to him was to the effect that Mrs. Chapman was not incompetent, and he found, therefore, that she was competent, and dismissed the petition. He also expressed the opinion that the hearing fixed a legal liability upon Mrs. Andrews, which was lacking before, referring to the testimony given by the plaintiff in that proceeding, substantially as repeated by her in the trial in this case and as quoted before. This was also supplemented there by testimony of Mrs. Chapman herself, in which Mrs. Chapman affirmed her satisfaction with the arrangements made between herself and the plaintiff, which included the conveyance of October 22, 1914.

The defendants interposed as defense in this case that, by reason of the situation and...