Berlin v. Wait

• Decision Date: 03 July 1922
• Docket Number: 10101.
• Citation: 208 P. 482,71 Colo. 533
• Parties: BERLIN et al. v. WAIT.
• Court: Colorado Supreme Court

208 P. 482

71 Colo. 533

BERLIN et al. v. WAIT.

No. 10101.

Supreme Court of Colorado, En Banc.

July 3, 1922

Error to District Court, City and County of Denver; Greeley Whitford, Judge.

Action to cancel deed by Zelma A. Wait against George H. Berlin, in which Edgar Berlin, by his next friend, father, and guardian intervenes. From judgment and decree for plaintiff, defendant and intervener bring error.

Affirmed.

Robert G. Bosworth, of Denver, for plaintiff in error George H. berlin.

Pershing Nye, Fry & Tallmadge, of Denver, for intervener and plaintiff in error Edgar Berlin.

William W. Garwood, Omar E. Garwood, and George O. Marrs, all of Denver, for defendant it error.

CAMPBELL J.

This action was brought by Zelma A. Wait to set aside and have canceled a warranty deed which she executed March 22, 1919 and delivered to George H. Berlin, the former husband of her deceased daughter, which deed the grantee placed on record. Plaintiff, a woman over 60 years of age, charges that while she was sick and in great mental anguish as the result of the death of her daughter, which occurred a few weeks before she executed this deed, and while she was not mentally competent to transact business, and because of her weakened physical and mental condition, brought about by her sorrow and illness, the defendant George H. Berlin, the grantee in the deed, who is a man of strong personality, had so insinuated himself into her confidence that she could not resist his importunities and in such circumstances made the deed in question, and as the result of fraudulent representations undue influence, and by divers threats, and not of her own free will.

The defendant answered, denying the charges. Leave was granted to the defendant's son, Edgar Berlin, to appear in the action by his next friend, the said George H. Berlin, and to protect his alleged rights in the property. The defendant and intervener denied the charges of the complaint, and each filed a counterclaim or cross-complaint, asserting title in the premises as heir of Mrs. Berlin, and asked to have such interests determined and the title quieted.

The trial was to the court without a jury. Findings of fact generally upon all the issues were made in favor of the plaintiff, and a decree was entered, canceling her deed and quieting title to the property in her. From that judgment and decree the defendant and intervener are here with this writ of error.

In the briefs of plaintiffs in error it is said that the case naturally divides itself into two parts or branches: First, that the plaintiff, by her escrow deeds delivered to one Wilson in 1915, vested title to the property in question in her daughter, Edna Belin, and upon the death of the latter, without a will, by the statute of this state, the property passed one half to her husband, the defendant, and the other half to the intervener, her son. In part 2 they say that the plaintiff, by her deed of March 22, 1919, to George H. Berlin, vested legal title in him in trust for the use and benefit of the intervener. It will be observed that these two parts or branches of the case are inconsistent. If the property was conveyed in 1915 by the plaintiff to her daughter as the result of the escrow deeds, Mrs. Wait had no title which she could convey in 1919 to George H. Berlin. If Mrs. Berlin got no title, defendant and intervener are not here as heirs, or in a representative capacity, and plaintiff had a title to convey to defendant.

There is testimony to the effect, and the court so found, that when plaintiff placed the deeds in escrow with Wilson, which defendant and intervener say named Mrs. Berlin as grantee, she did so with the understanding upon her part, as well as that of the escrow holder, that she might make changes in them, as she saw fit, and she subsequently did make one or more changes; and that she reserved the right to withdraw the deeds from escrow, although instructing the escrow holder to deliver them to her daughter after her death, if the daughter was then living. That being true, it sufficiently appears that the intervener and the defendant, as heirs of Mrs. Berlin, took nothing by these escrow deeds, for they were never delivered to the grantee, and the same were withdrawn and destroyed before the death of the latter. While counsel for the plaintiffs in error make the contention that these escrow deeds were valid and title thereby was vested in the grantee, Mrs. Berlin, we cannot disturb the finding of the trial court that the deeds were never delivered. 13 Cyc. 569 et seq.; Childers v. Baird, 59 Colo. 382, 148 P. 854. The property, therefore, belonged to the plaintiff, and her title was recognized by the defendant, and the property so remained the property of the plaintiff at the time that she executed the deed of March 22, 1919.

The only issue of fact, therefore, is whether or not this deed was procured as the result of the alleged undue influence, threats, and fraudulent representations by the grantee, Berlin. We assume with the plaintiffs in error that to justify the canceling of a deed the proof that it was procured by such improper motives must be definite and clear, and, as one of our own decisions says, the facts in support of a claim to set aside a deed must be proved beyond a reasonable doubt. Martinez v. Martinez, 57 Colo. 292, 298, 141 P. 469. The trial court who heard this case and saw the witnesses as they testified, found that the evidence was of the character required by our decisions. The testimony is practically undisputed that at the time of the conveyance in question, which was about two months after the death of plaintiff's daughter, she, the plaintiff, was greatly depressed mentally, was suffering from gallstones and Bright's disease, and was in a weakened bodily condition, as well unsettled in her mental state. While it is true that these facts alone would not prevent her from giving a valid deed, they are circumstances of weight in determining whether or not undue influence was exercised upon her, and her will thereby overcome.

Plaintiff testified that the defendant is a man of strong and forceful personality. She had implicit trust and confidence in him, and at the time of the conveyance was living with him, assisting in the care of his family, including her own grandson and two children of the defendant by a former marriage. The relation between them was one of confidence, and plaintiff at the time believed to be true all the representations made to her by the defendant. He told her that her title to the property was not good to the extent which she claimed, and, at best she had title only to an undivided one half; the other half being in the defendant and his minor son as the sole heirs of his deceased wife. He also told her that an effort was being made by relatives of her deceased husband to get this property from her, and that unless she made the deed in question to him, and as he wanted it, he would hold her liable for the value of the use and enjoyment of the premises which she claimed under her husband's deed, and that she would be deprived of this property by these relatives. He further told her that unless she made this conveyance, he would not permit her to visit her grandson or have access to him. She was devoted to her grandson, and, as the result of all these importunities and persuasions on the part of the defendant, she testified that her free will was overcome, and that she made the conveyance as the result of the undue influences, false representations, and threats of the defendant. It is true that the defendant denies these charges, and says that his only object in procuring the conveyance to himself was for the benefit of his son, which was also the desire of the plaintiff. The court, however, evidently believed the testimony of the plaintiff and her witnesses. Several of them testified that, after this conveyance had been made by the plaintiff to the defendant, the latter told them that he had 'put one over on the old lady' (refering to the plaintiff), and that he had blocked the scheme of her husband's relatives, which was to acquire ownership of the property.

Where is evidence to the effect that, through the influence of the defendant, plaintiff was taken or sent by him to a lawyer of his own selection, and prevented from having independent competent...