Chadd v. Moser

• Decision Date: 21 March 1903
• Docket Number: 1386
• Citation: 25 Utah 369,71 P. 870
• Court: Utah Supreme Court
• Parties: ANN MERIH HOWLS CHADD, Respondent, v. GEORGE MOSER and ELIZABETH S. MOSER, His Wife, Appellants

71 P. 870

25 Utah 369

ANN MERIH HOWLS CHADD, Respondent, v. GEORGE MOSER and ELIZABETH S. MOSER, His Wife, Appellants

No. 1386

Supreme Court of Utah

March 21, 1903

Appeal from the Third District Court, Salt Lake County.--Hon. W. C Hall, Judge.

Action to cancel and set aside a deed. From a judgment in favor of the plaintiff, the defendants appealed.

REVERSED.

Messrs Powers, Straup & Lippman for appellants.

Slight evidence of undue influence is insufficient to establish it. The influence must amount to force and coercion, destroying free agency as to the very act and the exertion of undue influence upon the very act must me proved. Estate of Carpenter, 94 Cal. 406. See also the following cases bearing on undue influence and incapacity: Ralston v Turpin, 129 U.S. 663; Baldwin v. Dunton, 40 Ill. 188; Beith v. Beith, 76 Iowa 601; Oneil v. Oneil, 30 Minn. 33; Bowles v. Walton, 54 Mo. 261; Wensell v. Rathjohn, 89 N.C. 377; Millicon v. Millicon, 24 Tex. 426; Sullivan v. Hodgkin, 12 S.W. 773; Hall v. Mutual Life Ins. Co., 43 S.W. 194; Martin v. Winton, 62 S.W. 180; Trimbo v. Trimbo, 47 Minn. 389; Litkins v. Litkins, 27 S.W. 531, 22 S.W. 895; Carnagie v. Diven, 49 P. 891.

Messrs. Smith & Putnam for respondent.

McCARTY J., delivered the opinion of the court. BASKIN, C. J., and BARTCH, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

Plaintiff brought this action January 4, 1901, to have cancelled and set aside a deed of conveyance to certain real estate situate and being in Salt Lake City, of the value of $ 1,500. The facts, in substance, as disclosed by the record, are as follows: The defendant Mrs. Moser is the daughter of plaintiff, and Mr. Moser is her son-in-law. Mrs. Moser before her marriage had lived all her life with her mother, and after her marriage she and her husband continued to so live with plaintiff until about six years ago, when they moved into a rented house about three blocks from plaintiff's home. Plaintiff had but one other heir (a daughter, Mrs. Brough), who lived in another part of the State, and who had visited her mother but twice in twenty years prior to the commencement of the suit. At the time of the making of the deed, plaintiff was seventy-six years of age, in poor health, and very much enfeebled. She had no means other than the property in question, which had been sold by Salt Lake City for delinquent assessments, and she had no means with which to redeem it. For several years plaintiff had been unable to pay the taxes on the property, and defendants had given her money for that purpose, amounting in all to about $ 200. About a year before the transaction complained of, plaintiff spoke to defendants about deeding the property in question to them, in consideration that they take care of her, make her comfortable, and pay her $ 5 per month during her life; and on numerous occasions subsequent thereto, and before the making of the deed, she expressed a strong desire to dispose of her property to defendants on these terms. About six weeks before the deed was made, plaintiff was taken sick on the street, and carried to the home of defendants, where she was nursed and cared for by them until she recovered. A short time before the execution of the deed the plaintiff consulted an attorney of good standing, and informed him that her mother had appeared to her in a dream or vision and requested her to care for one of defendants' children--a little boy three years of age--and spoke of deeding a part of the property to this child, but came to no definite conclusion in regard to it. She also spoke to several other parties about the dream or vision. Subsequently the plaintiff returned to the office of the attorney in company with defendants, and, after considerable discussion, plaintiff decided to deed the property in question to the defendants, which was done, the attorney representing and advising the plaintiff in the transaction. The attorney showed a decided interest in plaintiff's welfare, and advised her to dispose of her property by will, and not by deed. The defendants wanted a deed or nothing. The child above referred to did not directly or indirectly enter into the transaction. The consideration expressed in the deed was $ 200. On receiving the deed, defendants paid the back assessments for which the property had been sold, amounting to $ 63.65, and soon thereafter went into possession, and made valuable and permanent improvements on the same at a cost of about $ 100, and have since paid taxes thereon aggregating $ 90.75. At the time of making the deed, and as a part of the consideration thereof, defendants executed and delivered to plaintiff a lease, which, in substance, provided that "defendants leased to plaintiff one room in the building and on the premises heretofore conveyed by said deed for her and during the natural life of said plaintiff, and agreed to keep the said room in good repair and comfortable and suitable for plaintiff to live in and to pay to her $ 5 per month during her natural life, and at her death to properly and respectably bury her; to pay all funeral expenses and expenses of her last sickness." The record shows that defendants, in every respect, complied with the provisions of the lease. They provided plaintiff with a comfortable room, and paid the monthly installments, and furnished her fuel and with provisions for her table. There was some evidence of ill treatment, which consisted more of personal indifference of Mrs. Moser towards her mother, than of acts of violence or offensive conduct, or failure to provide her with the comforts or necessaries of life. This testimony of ill treatment, however, was vigorously denied by the defendants.

The court made its findings of fact, which, so far as material in this case, are as follows: "(7) That in the summer of the year 1898 plaintiff was taken suddenly ill on the streets of Salt Lake City, so that she was wholly unable to move or help herself in any way, and she was then taken by defendants to their home, and remained with them, in a sick and suffering condition, for about six weeks, part of the time in bed, and during a portion of the remainder of the time unable to move about, except on crutches. (8) That during the period of plaintiff's said illness defendant Elizabeth S. Moser waited upon her assiduously, giving her great and constant attention, both in person and by her children and the grandchildren of plaintiff. (9) That about or shortly prior to the time of said illness plaintiff believed she saw in a vision or dream her mother, then long dead, standing holding a little child of defendants, about three years of age, by the hand, and saying to plaintiff 'Take care of this child;' that said vision made a deep impression on plaintiff's mind, and caused her to take a special interest in said child, and to be very fond of him, and to be impressed with the belief that it was the wish of her dead mother that she provide for said child by giving him a portion of her property, and that it was her duty to carry out said wish; that plaintiff's belief and her peculiar feeling about said child and about her duty towards him was known to defendants." The tenth finding is, in substance, as follows: That during the time of her illness plaintiff was in a greatly enfeebled condition, both of body and mind; that the defendant Elizabeth S. Moser caused said child constantly to suggest and solicit plaintiff to take defendants and their family to live with her on her property; that during and subsequent to plaintiff's said illness defendant frequently suggested to plaintiff that she could provide for said child by deeding her property to them, and promised, if she would do so, to come and live with her upon the same, and to care for, nurse, and attend her with kindness and consideration during the remainder of her lifetime; and that in consequence of plaintiff's feelings about said child, and belief as to her duty towards him, plaintiff's mind, in its enfeebled state, became imbued with the idea that she could perform her duty to said child, and at the same time secure nursing, care, and attention for herself during the remainder of her life, by conveying her property hereinbefore described to the defendants. "(12) That plaintiff's mind at the time of the execution of said deed was not in a condition where she was competent to contract with said defendants with reference to said property, by reason of the delusion she was laboring under with regard to her duty towards their said child, and that plaintiff would not have made said deed to defendants, had it not been for said delusion." "(18) That plaintiff did not execute said deed of her own free will and volition, and in a competent and sound condition...