Burrow v. Hicks
| Decision Date | 10 April 1909 |
| Parties | LUTHER T. BURROW, ARTHUR H. BURROW, WILLIAM H. BURROW and LUTHER T. BURROW, Guardian of CHARLES M. BURROW and NELLIE G. BURROW, Minors, Appellants, v. ELLEN HICKS, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED TUESDAY, NOVEMBER 23, 1909.
Appeal from Sac District Court.--HON. Z. A. CHURCH, Judge.
SUIT in equity to set aside conveyance made by Maurice Burrow deceased, to defendant, Ellen Hicks, because made through undue influence exercised by defendant upon the deceased, and for the reason that the deeds were never delivered. The answer was a general denial, and upon trial to the court a decree was entered dismissing plaintiffs' petition, and they appeal.
Affirmed.
F. F Faville and S. M. Elwood, for appellants.
Tait & Jackson and W. A. Helsell, for appellee.
Plaintiffs are the children and heirs at law of Thomas Burrow, who died in Sac County, Iowa, May 15, 1906. Thomas Burrow was the son of Maurice Burrow, and defendant is his daughter. Upon the 19th day of May, 1906, deceased, Maurice Burrow, conveyed the lands in controversy, consisting of one hundred and sixty acres of land, to the defendant, his daughter; and died May 31 of the same year. Plaintiffs claim that the two conveyances whereby the title was transferred to the defendant were and are void and of no effect because never delivered during the lifetime of the grantor, and also say that Maurice Burrow was very weak, both in body and mind, at the time he signed them, and in such condition as to be easily influenced and imposed upon; that, taking advantage of his enfeebled condition, defendant induced him to make the deeds; that the conveyances were without consideration, and were and are of no validity. These are the exact issues in the case, although plaintiffs insist that the conveyances are invalid because the grantor lacked mental capacity to execute them. We find no such issue tendered by the pleadings, and must try the case on this appeal upon the pleadings filed in the district court.
We may at once eliminate the question of mental capacity, save as it has bearing upon the issue of undue influence. Of course, such testimony is very material, although not controlling on that issue. As the deeds were found in defendant's possession, and are duly acknowledged and recorded, there is a presumption that they were delivered, and the affirmative testimony is such as to leave in our minds no doubts regarding the actual delivery of the deeds. That they are not testamentary in character is also very fully shown.
The only doubtful or debatable question in the case is, Does the testimony show that they were procured from Maurice Burrow by undue influence? Upon this proposition the case is close, and but for the rule imposing the burden upon plaintiffs of proving the alleged undue influence, we should have some difficulty in arriving at a satisfactory conclusion. Defendant stood in no such relation of trust or confidence as to impose any burden upon her. True, she was assisting in the care and nursing of her father for some weeks before his death, but this was at the request of her brother, the father of plaintiffs. The deceased was no more dependent upon her than he was upon plaintiffs or their mother, as he lived with his son Thomas before his (Thomas') death, and with the plaintiffs after Thomas' demise, where he had made his home for more than thirty years. Defendant was doing nothing but her duty in assisting in the care of her father, and the other relations between them were not of a character to shift the burden upon her to explain the nature of the conveyances. On the contrary, the burden was upon the plaintiffs to prove the undue influence alleged. Perkins v. Perkins, 116 Iowa 253, 90 N.W. 55; Dean v. Dean, 131 Iowa 487, 108 N.W. 1051; Reeves v. Howard, 118 Iowa 121, 91 N.W. 896; Gates v. Cole, 137 Iowa 613, 115 N.W. 236; Vannest v. Murphy, 135 Iowa 123, 112 N.W. 236.
As defendant is the daughter of the grantor, love and affection was a sufficient consideration for the conveyances; and, although it be shown that no money passed at the time the deeds were made, and although they recited a money consideration, they are not for these reasons invalid.
For appellants it is contended that their grandfather when he made the conveyances was very weak, both mentally and physically; that he was practically upon his deathbed; that defendant and her husband, taking advantage of his infirmities, induced him to make the deeds in question, which were without consideration, and that he was in some manner imposed upon, and induced to make the conveyances which he would not have done on his own volition--substituting their wills for his, and securing an advantage to which they were not entitled. In the further discussion of the case, for the sake of brevity and clearness, we shall designate Maurice Burrow as "Burrow," and his son Thomas as "Thomas." Burrow, with his family, consisted of his wife, who died in 1873. Thomas, and defendant, Ellen Hicks nee Burrow, came to Sac County, Iowa, about the year 1870, and settled upon one hundred and sixty acres of land which was afterwards deeded to Thomas, and which he owned at the time of his death. Ellen worked as a field hand upon the farm, save when she taught two or three terms of school, down to the time of her mother's death. After that, and until the year 1880, she kept house for him (Burrow), and for Thomas and the hired help upon the farm. In 1880 she and her husband moved to a farm owned by him, something like three-fourths of a mile from Burrow's house. During the time she was at home, and while teaching school, she contributed all her earnings to the general fund for the support of the Burrow family and household. She never received any consideration for her services, and had nothing from her father until the deeds in question were executed. Thomas always resided with his father, even down to the day of his death--it may be as head of the household, although this we do not regard as very material. Title to the one hundred and sixty acres of land in Sac County was taken in the name of Thomas, and in 1876 he also held, in addition thereto, eighty acres of land lying in the same county. Thomas had become so involved that in the latter year he made a deed of the entire two hundred and forty acres to his father, with intent, no doubt, to delay his creditors. Burrow also required title to two hundred acres of land before the year 1896. In the latter year Burrow reconveyed to Thomas the one hundred and sixty acres of land therefore conveyed to him by Thomas, and also at the same time conveyed to Thomas one hundred and twenty acres of land in place of the eighty...
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