Carlson v. Smith

• Decision Date: 05 May 1931
• Docket Number: No. 40314.,40314.
• Citation: 236 N.W. 387,213 Iowa 231
• Parties: CARLSON v. SMITH ET AL.
• Court: Iowa Supreme Court

213 Iowa 231

236 N.W. 387

CARLSON

v.SMITH ET AL.

No. 40314.

Supreme Court of Iowa.

May 5, 1931.

Appeal from District Court, Boone County; T. G. Garfield, Judge.

This is an action in equity to set aside a warranty deed given by the plaintiff to the defendant Marie Smith, on the ground that the plaintiff was induced to make the transfer by false and fraudulent promises, statements, and representations alleged to have been made by the defendant Marie Smith. The trial court granted the relief prayed. The facts appear in the opinion.

Affirmed.

GRIMM, ALBERT, KINDIG, and WAGNER, JJ., dissenting.Pickett & Swisher, of Waterloo, for appellants.

White & Clarke, of Adel, for appellee.

FAVILLE, C. J.

On January 17, 1929, the appellee filed in the district court of Boone county, Iowa, a petition in equity asking to have a deed from the appellee to the appellant Marie Smith, dated June 4, 1928, set aside.

For many years the appellee and his wife lived on a farm near Boone. Having no children of their own, they took into the family, when she was nine years of age, the appellant Marie Smith, who most, if not all, of the time thereafter passed under the name of Marie Carlson. She lived with the family until she was twenty-three, when she was married. While living with the Carlsons she was very active, not only in doing housework, but in assisting with the plowing, husking, milking, haying, and other general farm work, so long as the appellee lived on the farm. When Marie was about eighteen years of age, owing to the ill health of Mrs. Carlson, a home was established in Boone, where Marie lived, caring for Mrs. Carlson. After her marriage she was called to go with Mrs. Carlson to various hospitals and other places for medical relief and attention.

During this time the appellee remained on the farm. Marie frequently went out to the farm to work, returning to care for the house and Mrs. Carlson at the home in Boone at night. At the request of the Carlsons she, after her marriage, frequently was called to take care of Mrs. Carlson. At times she remained as long as six or seven weeks at a time. Mrs. Carlson died February 6, 1928. in the meantime, Marie and her husband were living in Waterloo, where, at the time of the trial, they still lived.

It clearly appears that Marie worked very faithfully and very hard for the appellee and his wife. It also appears that, not only before the death of his wife, but afterwards, appellee relied to a large extent upon Marie. When his wife died he immediately called Marie. As the appellee testified: “She was the only one I had.” Shortly after the death of his wife, appellee decided he wanted to make a trip to his native land, Sweden, and again he called Marie, asking her to come to pack his trunk and help him get ready to make the trip. This included doing his washing and mending, buying shirts, clothing, and other material for him, and in general getting him ready for the trip. It seems he lived alone and had not disposed of any of his wife's wardrobe. This he had concluded to take with him to Sweden and give to some of his relatives there. He wished Marie to come to pack these goods and prepare him for the trip. She arrived in Boone the day before Decoration Day, May 29th, and remained until June 9th.

The appellee left for Sweden on June 13th. What happened at Boone between the appellee and appellant during the time intervening between May 29th and June 9th is in dispute.

On Decoration Day the appellee and appellant visited the cemetery at Boone together. Regarding that day's occurrences the appellee testified in part as follows:

“As we were down there she began to talk about it, she says, now you are going to take a dangerous trip, you have to do something, you better do something, she said, and so I said, what, I didn't know about anything, I thought everything was all right. No, you got to do something. And she wouldn't leave me alone, she was after me that whole evening. * * * She says, ‘You got to do something.’ ‘You got to get something done.’ She says, ‘Before you go.’ She says, ‘If you don't you are liable to have some trouble,’ and so she says, ‘I am the nearest to you’--I don't know how you are, I have a brother and a sister. But she said she would be so true to me as anything could be, and so she said if I would deed it to her, she didn't say deed, she said if I would do something, some writing to her when I come back I could come and live with her or have them papers back and she just got me too excited, you know, I had my sorrow after my wife died, and I was just worked up, I didn't hardly know what I was doing. * * *

Q. Mr. Carlson, you may tell the Court what she said, if anything, to you in reference to if you got back from Sweden, what she would do in reference to this property? A. She would give it right back to me. * * * She said it that night and she said it before we got the papers. * * * We talked it over the day before and the day before that and then I talked it over with my lawyer myself before she went along. * * *

Q. What did she say? A. You are in danger every minute.

Q. Is that what she told you? A. Yes, you are in danger every minute. * * * She wanted it done because she thought that somebody would sue me to get my property, I guess, and she thought she would protect me. * * *

Q. What did she say in those conversations what she would do in case you got back from Sweden all right? A. Then she would turn it back. She would never have got it if it hadn't been for that. * * *

Q. State whether or not you had confidence in what she would promise to do? A. I had all of the confidence I could have. I couldn't have had any more.

Q. At that time did you state--state whether or not at that time you believed she would do what she said she would do? A. Sure.

Q. Deed this property back to you when you got back from Sweden? A. I sure did.”

Referring to the execution and delivery of the deed at the office of the attorney who drew the same, the appellee testified:

“Q. Well, what was done there, go on and tell just what was done then? A. It was this way, that we come up there to have it done and she agreed to hand it back when I come back from Sweden and I don't know anything more.

Q. And was that talked over in the lawyer's office? A. It was talked over in the lawyer's office. * * *

Q. Yes, you answer my question I asked you what you done after you signed this deed and after Mr. Dyer put his seal on it? A. He held it in his hand like this (indicating) and she was sitting right about there and he says, ‘When he comes back from Sweden you hand that back to him, will you?’ And she says, ‘Yes.’ And after she said yes he let her have it. After Mr. Dyer handed the deed to Mrs. Smith we left the office. I think we went home.”

Mr. Dyer, who drew the deed, testified:

“The conversation before the deed was drawn had to do with the--I supposed that a deed was what they wanted, I didn't know, and I got the description, I think in the first instance from some tax receipts Mr. Carlson had, but I believe I checked them later with the abstracter's books, I mean just by phoning, of the Boone County Abstract Company, that is the best description that I could get, then I went out to the outer room and prepared this deed and when I came in I read it over to them and began checking the description and said, is that the way it is to be and I was answered in the affirmative from somebody, I don't know who it was, and so I took it and just before I handed it to Mrs. Smith I said, ‘It is your understanding that if Mr. Carlson gets back from Sweden all right you are to turn this back to him?’ And she said, ‘Yes,’ and Mr. Carlson also said, ‘Now you remember that, don't you Marie? And she said, ‘Yes, I remember it.’ I remember that very distinctly.

Q. Prior to that time do you remember, Mr. Dyer, whether there had been any talk in reference to the same matter of the property being conveyed back to Mr. Carlson in case he came back safely from Sweden? A. Yes, there had before I even prepared the deed.

Q. And can you remember what was said in reference to that before you prepared the deed? A. Yes, sir.

Q. Tell the Court what it was? A. Mr. Carlson said, ‘Now, Marie, I am going to give this to you while I am gone.’ And he says, ‘When I get back you are going to give it back to me. You have got to give it back to me.’

Q. What did she say? A. She said she would.”

Against this testimony is that of the appellant, as follows:

“He had not said anything at all about the deed or about having it signed over for his trip to Sweden. The only thing that had been said when I asked him not to go with women, but to let Mother at least get cold in her grave. And he had been going with this one woman some time then, and what his talk was with Mr. Dyer in the office I don't know and I never knew he had been to the office until Monday morning. * * *

Q. And he never during the nearly ten days you were there in his house said anythingabout his property? A. Not a word. * * * The day I went to Mr. Dyer's office with him there was some talk in my presence between Mr. Carlson and Mr. Dyer.

Q. And was it before or after the deed was made out that you agreed in case he got back from Sweden alive that he was to have this property back? A. There was nothing asked about whether I agreed to do anything or anything, there never was a word said about signing any back. I heard Daddy testify.

Q. Well now you testify before this court whether the man you call Daddy and Mr. Dyer had never said up there in the office anything about returning this property to Daddy if he got back from Sweden? A. He didn't say it to me. He asked Mr. Dyer if he couldn't put it in the paper where I would have to return it when he came back, if he could put that clause in the deed.

Q. Did you offer to do that? A. I didn't say anything.

Q. Were you objecting to that? A. No.

Q. You were perfectly willing to do that? A. Yes.”

The foregoing is the...