Bush v. Bush

• Decision Date: 18 March 1930
• Docket Number: Case Number: 19177
• Parties: BUSH et al. v. BUSH.
• Court: Oklahoma Supreme Court

1930 OK 117

286 P. 322

142 Okla. 152

BUSH et al. v. BUSH.

Case Number: 19177

Supreme Court of Oklahoma

Decided: March 18, 1930

Syllabus

¶0 1. Deeds--Action to Cancel Deed from Father to Son--Judgment for Defendant Sustained.

Where, in a suit in equity to cancel a deed from a father to his son purporting to be for a cash consideration, but where the real considerations were certain moneys to be paid out of the proceeds of a loan to be secured by mortgage on the land and a certain part of the crops to be thereafter grown upon the premises during the lifetime of the grantor and a promise by the grantee to support the grantor for the balance of his life, such promises of the grantee, made in good faith and carried out in so far as possible, constituted a sufficient consideration for such deed, and where there is no evidence of incapacity of grantor, or fraud, mutual mistake, or undue influence in the transaction, and no confidential relation is shown between the father and such grantee, it was not error for the trial court to sustain the deed and deny plaintiffs a recovery.

2. Same--Relation of Parent and Child Held not to Cast Burden of Proof on Grantee to Show Good Faith of Transaction.

Where a deed executed by a father to his son apparently upon a good and valuable consideration is sought to be canceled on the ground of fraud, undue influence, and failure of consideration, the fact that the relation of parent and child exists between the parties is not, within itself, sufficient to raise a presumption of fraud, undue influence, or absence of consideration so as to cast the burden upon the grantee to show that the transaction between them was in good faith.

3. Witnesses -- Communications Between Parties and Attorney not Privileged Where Action Between Parties.

When two or more persons consult an attorney as the common and joint adviser, communications between them and such attorney are not privileged in actions among themselves, and any one of them may require the attorney to testify as to such communications.

4. Appeal and Error--Review--Sufficiency of Evidence in Equity Case--Erroneous Admission of Evidence.

Where, in an equity case appealed to this court, it appears that the trial court committed error in the admission of testimony of an incompetent witness, this court will not reverse the case where it also appears that the lower court committed error in striking out (over exception of appellee who is seeking merely affirmance of the judgment) the identical testimony from another witness upon the same points and to the same effect, and where the stricken testimony appears in full in the record. In such case this court, having all the evidence before it, will pass upon the entire case, and unless the judgment of the trial court was against the clear weight of the evidence, the same will not be reversed.

5. Same--Judgment Sustained.

Record and evidence examined and weighed; held, that the judgment of the trial court is not against the clear weight thereof.

Commissioners' Opinion, Division No. 2.

Error from District Court, Woods County; Arthur G. Sutton, Judge.

Action by F. B. Bush et al. against Charles R. Bush. Judgment for defendant, and plaintiffs appeal. Affirmed.

Mauntel & Spellman and Chase & King, for plaintiffs in error.

E. W. Snoddy, for defendant in error.

BENNETT, C.

¶1 This was a civil action wherein F. B. Bush and E. M. Bush, as plaintiffs, sought to cancel a warranty deed executed by James M. Bush to defendant Charles R. Bush. The parties occupy here the same relative positions as in the trial court.

¶2 The petition alleged that plaintiffs and defendant were the only children and heirs at law of James M. Bush, deceased, who died about March 20, 1924, seized of west half of northeast quarter and west half of southeast quarter of section 31, township 29 north, range 14 W. I. M., in Woods county, Okla.; that said decedent, while sorely diseased and weak in body and mind, executed the warranty deed aforesaid conveying above-described lands to Charles R. Bush; that such conveyance was procured by the fraud and undue influence of grantee.

¶3 Defendant filed a general denial followed by an admission that decedent, upon a proper consideration, executed to defendant a valid general warranty deed to premises described in petition.

¶4 The allegations of the petition were somewhat wider in scope than herein indicated, but in the initial stages of the trial it was made to appear to the court that the question of mental capacity of decedent would not be an issue, and that the case would be tried solely upon the issue as to whether or not there was a consideration for the conveyance attacked.

¶5 Many witnesses testified, but an abridgment of their evidence will suffice.

¶6 James M. Bush located near Alva, Okla., when the Cherokee Outlet was opened for settlement and acquired and lived upon the lands in controversy until shortly before his death in March, 1924. He was divorced from his wife, the mother of plaintiffs and defendant, many years ago, and lived practically alone since 1901. Charles Bush at the date of trial was 41 years old; Frank was 40 and Elmer was 34. The record discloses that from about 1896, until Charles was married, he lived with his father and helped him farm the homestead, and for 18 or 20 years before his father's death, he lived within a quarter mile of his father, and cultivated, or assisted in cultivating, said land, with the exception of one year. Frank Bush lived at various places; and Elmer, for the most part, made his home with his mother, but the two made occasional visits to their father's home. The father spent about a month with Frank Bush, who lived at Hardtner, Kan., in the fall of 1923, but later moved to the home of defendant, where he spent the remainder of his days. A house was purchased for the father's occupancy and attached to the residence of defendant.

¶7 About January 15, 1924, James M. Bush and defendant went to the office of T. J. Womack who had been practicing law in Woods county for many years. The elder Bush had known this attorney since 1896, and had had legal and other business with him. James M. Bush informed the lawyer that he wished him to draw up a deed conveying his home place to Charles Bush, and gave him detailed information as to the consideration, etc. A general warranty deed was drawn up in conformity to this request and same was formally executed, acknowledged and delivered in the office to grantee. Said attorney was also requested to draw a contract between said parties, providing, among other things, that, in consideration of the execution of said deed, Charles should pay his father $ 500 within six months, and containing the following:

"It is further agreed by the said party of the first part to and with the second party, that he will and shall house, keep and board and give such care and attention as the second party may need, and such as is due from a son to a father in his declining years, and supply him with all the necessary needs during the remainder of his lifetime and such as his condition may require.

"It is further agreed by and between the parties hereto that said first party shall and will harvest, thresh and deliver at Hardtner, Kan., one-half (1-2) the wheat crop or the proceeds thereof, now planted and growing on the above-described land, to the second party at his option.

"It is further agreed by and between the parties hereto that the party of the first part shall and will harvest and thresh all of the wheat grown on the above-described land and deliver to the second party at Hardtner, Kan., free of charge, one-third (1-3) of all said wheat grown on said land each year thereafter during the remainder of the life of the said second party."

¶8 The attorney informed Mr. Bush that he would investigate the law, and would then draw the contract and mail same out to them. The attorney looked up the matter and drafted contract as indicated and mailed same within a week to the parties. This contract conformed to both oral and written instructions given said attorney. James M. Bush informed the attorney Just what the agreement was between them.

¶9 There is evidence that defendant was to pay the $ 500 out of proceeds of a loan to be negotiated on the land. The contract mailed out was not signed. The only explanation of this omission was made by Charles Bush to the effect that they were expecting to go back to Hardtner, and sign and acknowledge same before a notary public, but that they put the matter off and did not attend to it. It also appears that Charles proceeded to do the things called for in the contract; that he maintained his father as a member of his household; that the only reason he did not pay the $ 500 was that the loan had not been concluded and proceeds received before the father's death, but that an application had been promptly made and the loan was in process of negotiation. The loan was finally approved and proceeds paid late in April, 1924, a short while after the death of James M. Bush.

¶10 It is in evidence that said James M. Bush was up and about, able to saddle and ride his horse, make sales of his personal property and see to removal of same over to the home of Charles R. Bush. The personal property was retained by said James M. Bush.

¶11 It is shown, too, that the deed was immediately placed upon record and Charles testified that he knew what the terms of the contract were when the deed was delivered to and recorded by him; that almost immediately after putting the deed on record, he made application for a loan on premises according to agreement with his father; that this was done to expedite securing of money to make payment under the agreement.

¶12 The $ 500 was never paid, but Charles paid the funeral expenses and doctor bill of his father, but same was a voluntary payment on his part.

¶13 Defendant testified that he did not know and had no information that his father would live only a few months; that ...