Brown v. Laird

• Decision Date: 04 September 1930
• Citation: 291 P. 352,134 Or. 150
• Parties: BROWN v. LAIRD ET AL.
• Court: Oregon Supreme Court

291 P. 352

134 Or. 150

BROWN v. LAIRD ET AL.

Supreme Court of Oregon, En Banc.

September 4, 1930

Supplemental Opinion October 21, 1930.

Appeal from Circuit Court, Union County; W. W. Wood, Judge.

Suit by Lillie F. Brown against L. M. Laird and wife and another. Decree for plaintiff, and the defendants appeal.

Affirmed.

This is a suit instituted by plaintiff, Lillie F. Brown, to have the following instruments nullified on the ground of fraud: (1) A power of attorney executed January 6, 1925, by Matthew Wells Mitchell to his wife, Matilda J. Mitchell. (2) A deed given to Minnette Sentner, December 7, 1926, by Matilda J. Mitchell individually and as attorney in fact for Matthew Wells Mitchell covering the land in controversy, title to which was held by Mr. and Mrs. Mitchell by the entirety. (3) A deed given to L. M. Laird and Luella E. Laird, by Minnette Sentner, June 8, 1928, covering five acres of the property in controversy. From a decree in favor of plaintiff, defendants appeal.

H. E. Dixon and E. R. Ringo, both of La Grande, for appellants.

J. S Hodgin, of LaGrande, for respondent.

BEAN, J. (after stating the facts as above).

Matthew Wells Mitchell and Matilda J. Mitchell were married April 19 1893, at which time Mr. Mitchell, a widower, was residing on a farm near Cove, Or. The plaintiff is a daughter of Mr Mitchell by a former marriage, and Minnette Sentner is the daughter of Mrs. Mitchell by a former marriage. Both Mrs Brown and Mrs. Sentner were adults and married at the time of the marriage of Mr. and Mrs. Mitchell. At that time Mr Mitchell was possessed of considerable real estate, part of which was good tillable land and the remainder was hill or pasture land. The evidence does not definitely disclose the financial condition of Mrs. Mitchell at the time of the marriage. She had been operating a rooming house in Portland and engaged in the real estate business. She was a business woman of more than ordinary ability. She was possessed of residence property in Tacoma, and subsequently inherited $2,000 from her parents. Mrs. Mitchell was twelve years younger than her husband and died January 16, 1928. Mr. Mitchell died July 27, 1928. During the hard times of the nineties he was financially involved, but afterwards his affairs appear to have been straightened out, and he possessed property of the value of some twenty or thirty thousand dollars. Mr. Mitchell's health was failing from about 1916 to 1918. He had the palsy, and, commencing about 1920, for quite a long time, he had a physical and mental breakdown. At times he did not recognize his friends and relatives, and gradually grew worse until about 1924 when he became bedfast, and as for business transactions he was practically non compos mentis. Mr. Mitchell had been an active, intelligent business farmer and school-teacher. When his health and strength failed he turned the management of his affairs over to his wife. He gradually became accustomed to accede to any business proposition that his wife made. It required but little effort for Mrs. Mitchell to control the transaction involved in regard to the power of attorney, which diverted the property from Mr. Mitchell's estate and prevented the culmination of the bequest made by Mr. Mitchell to his only daughter. The evidence shows that Mr. Mitchell did not intend to authorize an act that would practically disinherit his daughter, who came to his bedside during his illness, after the death of her stepmother, and watched over and cared for him. The power of attorney does not show such an intention. The intention of the donor or grantor is to be gathered from the instrument of creation. 49 C.J., p. 1260, § 34, and p. 1262, § 40; Frank v. Frank, 305 Ill. 181, 137 N.E. 151.

On January 6, 1925, Mr. Mitchell gave to his wife a power of attorney "to lease, let, demise, bargain, sell, remise, release, convey, mortgage and hypothecate lands, tenements and hereditaments upon such terms and conditions and under such conveyances as she shall think fit. To sign, seal, execute, deliver and acknowledge such deeds, leases and assignments of leases," and other instruments in writing as may be necessary or proper in the premises, "including lands I now own within Union County, Oregon. Including also the right to sign my name to, upon any mortgage, executed by my wife upon property owned by her in Union County, Oregon, to release courtesy estate" and granting the usual general powers. At the time of the execution of the power of attorney it was contemplated by Mrs. Mitchell to mortgage the property standing in her name.

Mr. George Currey, a real estate dealer of La Grande, was negotiating a deal for a swimming pool property at the town of Cove, Union county, for one Martin Borkgren for $18,000, to Matilda Mitchell and Minnette Sentner, and he had several consultations with these two women to promote the deal. In attempting to obtain a loan to make a part payment on the swimming pool property, it was arranged between the three that Currey should prepare a power of attorney and bring it over to Cove and get Mr. Mitchell's signature thereto, and to use this power of attorney in carrying out the swimming pool deal. Mr. Mitchell was not approached or consulted, the real estate dealer did not see him until the power of attorney was prepared, and he was wheeled out from his bedroom into another room and then told by Mrs. Mitchell that Mr. Currey was there with papers to sign, or power of attorney. When asked if he "was ready to sign" he answered "Yes," which appears to be the only thing Mr. Mitchell said regarding the transaction. The power of attorney was read over to him, handed to him, and his hand guided in making his mark. Mr. Currey seemed to have taken it for granted that it was a family affair and was all well understood, and he had but little conversation with Mr. Mitchell.

On December 7, 1926, under the assumed authority of this power of attorney, Mrs. Mitchell, individually and as attorney in fact for Matthew Wells Mitchell, executed a deed to Minnette Sentner, her daughter by a former husband, attempting to convey to her the last piece of property that stood in the name of Mr. Mitchell and his wife. It appears from the record that the power of attorney was not given for such a purpose. The consideration of the deed was one dollar and other valuable considerations, which is claimed to be the assistance rendered by Mrs. Sentner in the care of her stepfather, Mr. Mitchell. Mrs. Sentner had charge of the swimming pool property and went back and forth from there to her stepfather's and her mother's residence, and assisted in the work about the house and in caring for her stepfather. She had made her home, together with her daughter, with the Mitchells most of the time since about 1915. At times while she was married she lived elsewhere. During the time she lived with the Mitchells she was a member of the family. There was no agreement made or claimed to have been made to pay her wages for assisting in the work about the Mitchell home. The conveyance of the land to Mrs. Sentner was, to all intents and purposes, a gift, and was contrary to the provisions of the will executed by Mr. Mitchell November 11, 1914, bequeathing to his daughter, Lillie F. Brown, a legacy of $6,000. The conveyance of this land to Mrs. Sentner rendered this provision of the will practically nugatory, as there was no property or funds with which to pay the same.

We quote from 49 C.J., p. 1271, § 70: "Gifts. Power to sell does not include authority to make a gift of the subject matter, or convey it without consideration, and such a transfer is void."

The circuit court, after a careful and painstaking hearing of the case, found that Mr. Mitchell did not fully realize what he was doing at the time the power of attorney was executed. The trial court also found, in substance, that the power of attorney to sell and mortgage lands did not authorize the donee of the power to make a gift to Mr. Mitchell's stepdaughter. We concur in these findings.

Whatever the donee of the power does must be done for the benefit of the donor, and when the agent is authorized to make a sale of certain property, the word "sale" does not mean the same that it does in the ordinary acceptation. It means the transfer or passing of title in exchange for money, preferably paid in cash, or for some future credit arrangement, such as a note, or the like. See Coulter v. Portland Trust Co., 20 Or. 469, 26 P. 565, 27 P. 266, which practically settles the question in this case. See, also, Wade v. Northrup, 70 Or. 569, 140 P. 451. The Coulter Case involves a power of attorney authorizing the buying, selling, transferring, or mortgaging real estate, and a deed and transfer executed under the authority of the power of attorney. We quote from that case as follows:

"In consideration of one dollar to us paid by W. G. Jenne, and for the further consideration that the said W. G. Jenne hereby assumes the responsibility of providing a suitable and comfortable home for and of properly clothing Nellie Palmer, the daughter of said Howard H. Palmer and R. A. Palmer, until the said Nellie Palmer (now nearly three years of age) shall reach the age of 18 years, do hereby grant, bargain, sell, and convey. * * *

"The only question that we need to consider is the extent of the agent's power conferred by the words 'selling' or 'transferring.' "

The court then refers to a Texas Case Gouldy v. Metcalf from 75 Tex. 455, 12 S.W. 830, 16 Am. St. Rep. 912: "In that case the attorney was authorized by the power 'to buy sell, and exchange property, to receive and receipt for money, to sell and dispose of property, to give bills of sale thereto, or to sell and transfer real estate, and to execute...