Brummond v. Krause
| Decision Date | 11 October 1899 |
| Citation | 80 N.W. 686,8 N.D. 573 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; Lauder, J.
Suit by August Brummond and Louisa Brummond against Albertina Krause and others. Judgment for plaintiffs, and defendants appeal.
Affirmed.
Chas E. Wolfe and W. E. Purcell, for appellants.
Freerks & Freerks, for respondents.
The plaintiffs seek in this action to annual and cancel a certain warranty deed executed by them on or about December 28, 1897 conveying 160 acres of land, situated in Richland county, to the defendant Albertina Krause; also to cancel and declare void a mortgage thereon executed by said Albertina Krause and John Krause, her husband, in favor of Otto Latzky, the other defendant, to secure the sum of $ 300. The mortgage bears date December 30, 1897. Fraud on the part of the grantee and her husband in procuring the execution of the deed, and knowledge thereof and participation therein by Latzky, the mortgagee, are alleged as the basis of the relief sought. The trial court found for the plaintiffs, and a decree was ordered and entered declaring both the deed and mortgage void, and quieting title in the plaintiffs. The case is here for trial anew upon defendants' appeal, and involves only a retrial of fact issues. Our determination of the facts from the printed evidence does not differ essentially from the findings of the trial judge, and our conclusion is that the decree canceling both the deed and the mortgage, and declaring them void, was proper.
August Brummond and Louisa Brummond, the plaintiffs herein, are husband and wife. Both are Germans. Neither can write, read or speak the English language. August Brummond is 74 years old, and his wife is 66. They came to this country about 14 years ago. In 1892, August Brummond filed a homestead entry upon the land in question. Since that time, and up to the execution of the deed, it was occupied by him and his wife as their home. Final proof was made in August, 1897, under the homestead laws of the United States, and final receiver's receipt issued. Albertina Krause, the grantee, is plaintiffs' daughter. She, with her husband, John Krause lived upon an adjoining claim, which was not proved up when the deed in question was executed. Their houses were little more than 50 feet apart. During the several years they lived there the two families appear to have aided one another in various ways. For instance, the son-in-law assisted the plaintiff in making his filing, also his final proof, and seems to have advanced the money to pay the fees. He also helped build the little shanty in which the old folks lived, and broke up and brought under cultivation a large portion of their land. On the other hand, the services of the plaintiffs were always at the command of the defendants, and were frequently called for; Mrs. Brummond assisting her daughter in her housework and in the care of her children, and her husband laboring in the fields. They also permitted the defendant Krause to crop and use their land as his own. Generally speaking, their business dealings were conducted in a manner usual to those similarly related,--without definite agreements or settlements. The relation of the parties was not only one of trust and confidence, but, on account of the illiteracy, ignorance, and mental and physical infirmities incident to their advanced years, plaintiffs were entirely dependent upon their daughter and her husband for guidance in all their affairs. It is clear from the evidence that the conduct of the daughter towards her aged parents was always unfilial, domineering, and even brutally cruel. Threats against the life of her parents were of frequent occurrence, and at times her vicious disposition vented itself in blows upon her mother. So, too, the daughter seems to have had the steadfast desire of getting the deed to this land, from the time her father filed upon it, notwithstanding it was all the property her father and mother had to support them for the rest of their lives, and in face of the fact that they had seven other children then living. The fact that plaintiffs continued to live in this condition of dependency, as the evidence shows they did, and to serve their daughter and her husband for so many years, is not to be attributed to choice, but to their helplessness to do otherwise. The defendant Otto Latzky held Krause's note, secured by chattel mortgage upon the horses and chattels with which he (Krause) operated his own and plaintiffs' land, and was pressing for payment. Krause had no other property upon which he could either further secure Latzky, or upon which to borrow money to pay him, and this was known to Latzky. In November, 1897, with Latzky's knowledge, Krause and his wife negotiated with an attorney in Wahpeton for a $ 400 loan, to be secured by a mortgage to be executed by plaintiffs upon their land, the notes to be guaranteed by the Krauses. This was for the purpose of getting money to pay Latzky. The mortgage and notes for this loan were executed by plaintiffs under the influence, as we think, of statements by the defendants that, if not done, the horses and machinery would all be taken away from the farm. For some reason the attorney of the mortgagee declined to complete the loan, and the papers were returned to the defendant Krause, who then had the same attorney prepare a warranty deed to the land in which his wife was named as grantee, ready for plaintiffs' signatures. A typewritten contract was also prepared, bearing date December 20, 1897, wherein these plaintiffs acknowledged the receipt from the Krauses of $ 618, as therefore paid to them in the form of money, labor, and goods, in consideration for which, and an agreement to furnish a certain yearly support, it was recited that they had conveyed to Albertina Krause the land in question. Defendants, on their part, agreed in said contract to deliver to plaintiffs during their lifetime, and yearly, $ 25 in cash, 25 bushels of potatoes, 500 pounds of flour, 3 cords of wood, and 1 hog. The plaintiffs had nothing to do with the negotiations for the mortgage loan or the preparation of this deed and contract. Neither of them was in Wahpeton. The mortgage was signed and acknowledged at their house before a notary public sent there for that purpose. The entire business was conducted...
To continue reading
Request your trial