Binder v. Binder

• Decision Date: 18 April 1957
• Docket Number: No. 33705,33705
• Court: Washington Supreme Court
• Parties: Rose BINDER, Respondent, v. Edward BINDER and Della Binder, husband and wife, Appellants.

Page 142

50 Wn.2d 142

309 P.2d 1050

Rose BINDER, Respondent, v. Edward BINDER and Della Binder, husband and wife, Appellants.

No. 33705.

Supreme Court of Washington, Department 1.

April 18, 1957.

Dean & Williams, Spokane, for appellants.

Victor J. Felice, Spokane, for respondent.

ROSELLINI, Justice.

The respondent brought this action to cancel a deed which she had made to her son, alleging that the deed had been obtained through fraud and undue influence and without consideration. The facts out of which the controversy arose can be summarized as follows:

Some twenty-five years ago the respondent and her husband, A. E. Binder, who died in 1949, acquired a block of property in Spokane, consisting of ten lots. In 1936, A. E. Binder relinquished his interest to the respondent, by quitclaim deed. The respondent and her husband reared their eight children in a large brick house which stood on two of the lots and in which the respondent now lives with an unmarried son, Leo, aged twenty-three, and another son, Louis, whose wife and children also reside with the respondent. Another son, Joe, lives with his family across the street from the respondent.

In 1940, A. E. Binder converted a barn standing about 125 feet from the brick house into living quarters; and during the war, this structure was rented for $25 a month including utilities. After the war the appellant Edward J. Binder, who is also a son of the respondent, moved into the small house with his then wife and, by agreement with his father, paid $10 a month rental. The electricity and water bills were paid by his parents. Later, Edward J. Binder, who will hereafter be referred to as the appellant, was divorced from his first wife; and in 1948 he was married to his present wife, Della Binder, who, with her yound son by a previous marriage, came to live with him in the small house. In 1949 another child was born. The appellant continued to pay $10 per month for rent until April, 1950, when, according to his testimony, the respondent entered into an oral agreement to sell six of the lots and the small house to the appellant for a consideration of $1,000, to be paid $100 down and $15 per month, without interest.

On April 27, 1951, the respondent executed a quitclaim deed in favor of the appellant and his wife and a sale agreement, whereby she agreed to sell six lots for the sum of $1,000. Receipt of $280 was acknowledged, and the agreement provided that the balance was to be paid at the rate of $15 or more per month. No provision was made for interest. These instruments were drawn up by an attorney, at the request of the appellant, and were executed in his office.

According to the terms of the sale agreement, the deed was to be placed in escrow until the balance was paid. However, the original of the sale agreement and the deed were turned over to the appellant, and in February, 1952, he recorded the deed. Five days later he mortgaged the property to secure a loan of $1,700. As additional security he gave a chattel mortgage covering his 1948 Oldsmobile sedan, household furnishings and appliances, and other personalty. In 1954, an additional loan of $2,000 was obtained, part of the proceeds of which were used to pay off the first mortgage, and the same property was given as security. The appellant did not advise the respondent that he had mortgaged the property, and she did not learn of the fact until this action was instituted.

When A. E. Binder died in 1949, he left his foundry business (the St. Louis Brass & Iron Works) to Joe, Louis, and the appellant and his community interest in a locker business, which was sold for $20,500, to his other children. From her interest in this business, the respondent receives $1,000 per year under the terms of the sale contract, and the five children also receive $1,000, which is divided among them.

The three sons who inherited the foundry did not get along well together and were unable to cooperate in the management and operation of the business. It was eventually placed in receivership by the appellant, and was purchased in 1952 by Joe for $4,500. After relinquishing his interest in the business, from which he had derived from $60 to $75 per week, the appellant took a job as a draftsman, which he now holds and which pays him approximately $375 per month.

In addition to the income which she receives from the sale of the locker business and the sale of the house and lot to the appellant, the respondent receives $10 per week rent from each of the two sons who are living with her. Her son Joe has contributed money for the payment of taxes and assessments on her property. Louis and Leo help her around the house. It appears that the appellant has contributed little to his mother in the way of financial aid or labor.

The testimony of the two parties concerning the circumstances surrounding the execution of the deed and sale agreement was sharply conflicting. In substance, the respondent testified that she had never intended to sell or give the property in question to the appellant; that she had never executed the deed which bore her signature and was notarized by the attorney; that she had never received or endorsed a check for $90 (purportedly a part of the down payment), which also bore her signature; and that the $15 per month was paid as rent and not as house payments. She admitted going to the attorney's office and signing the sale agreement, but denied any knowledge of its contents. She stated that she had not asked to have it read to her. She signed the agreement, she said, because the appellant had told her that if she continued to allow Joe to pay the taxes on her property, he would take it away from her. She admitted on cross-examination that she did not believe this at the time. The appellant asked her not to tell any of the other children about the transaction, and she agreed to keep it secret. She had gone to appellant's house each month to collect the 'rent' and signed receipts which he kept intact in a receipt book and each of which bore the notation 'payment for (month) on house and lots,' or 'payment for (month) on house and 6 lots.' However, she testified that she had never read these notations because the writing was too small and she did not have her reading glasses with her. Although sometime prior to September 9, 1954, she had joined with the appellant and his wife in a petition to vacate an abandoned railroad right of way adjacent to her lots and those which she had deeded to the appellant and his wife, she denied having any notice of their claim prior to the receipt of a letter dated September 29, 1954, from an attorney representing a concern which had put in a sewer system on her lots. The letter stated that the court house records showed title to these lots to be in her son, E. J. Binder, but the writer had found on checking the deed, that the court house records were wrong and that she still retained title to the lots in question. The respondent showed this letter to Louis, who in turn showed it to Joe. Joe contacted an attorney, and this action followed.

The respondent testified that she had handled her own business affairs since her husband's death, but that she sometimes discussed them with one or another of her children. She trusted both Joe and the appellant and did not believe that Joe would steal from her. She did not testify to any threats or coercion on the part of the appellant, aside from her testimony that he had stated that if Joe continued to pay the taxes on her property, he would take it away from her; that he had asked her to keep the transaction a secret from the other children; and that he had said, when they went to the lawyer's office to sign the paper, that he was in a hurry to get back to work.

According to the appellant's version of the transaction, in the spring of 1950 he and his wife had told the respondent that they would like to build a house sometime in the future and were interested in acquiring some property for this purpose. They asked her if she would be willing to sell them some of her lots. She said she would think about it. A week or so later they brought the subject up again and she said that she would be willing to sell them all the lots lying 'behind the arbor,' that four lots were all she needed and she was tired of paying taxes on the unused property. She had not made up her mind at that time about the price. A few days later she told them she would be willing to sell the lots and the little house to them for $1,000. They asked if a down payment of $100 would be enough, and she said that it would. This down payment was made in the form of a check for $90 and $10 in cash.

The appellant suggested that since they were buying the house, the monthly payments should be greater than the rent they had been paying and suggested $15 a month, to which the respondent agreed. She also agreed to keep the matter a secret because if the others knew about it, they would try to interfere. He quoted her as saying, 'If I want to do something for you kids, it is none of their business.'

The appellant testified that he did not know the true value of the property but supposed that it was around $700 to $750. He based this assumption on the valuations shown on the tax receipts. At that time the railroad right of way was in use and two or three trains passed their property each day. There was no means of ingrees and egress except across the lots retained by the respondent.

Although the down payment was made in April, 1950, and the monthly payments of $15 were paid thereafter, the appellant did not...