Cole v. Getzinger

• Decision Date: 30 April 1897
• Citation: 71 N.W. 75,96 Wis. 559
• Parties: COLE ET AL. v. GETZINGER ET AL.
• Court: Wisconsin Supreme Court

96 Wis. 559

71 N.W. 75

COLE ET AL.

v.GETZINGER ET AL.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from circuit court, Jefferson county; John R. Bennett, Judge.

Action by Ira B. Cole and others against Peter Getzinger and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed except as to defendant Getzinger.

This action was brought to set aside a deed of conveyance of a certain farm, containing about 75 acres, in the town of Herman, Dodge county, made by Ira S. B. Cole, November 22, 1892, to the defendant, Alice Farmer, on the ground that it was procured through fraud, undue influence, and want of capacity of the grantor. On the 29th of the same month, Alice Farmer conveyed the same premises to the defendant Peter Getzinger. At this time the grantor, Ira S. B. Cole, was living with the defendants Cassius M. Moody and Betsey C. Moody, his daughter; and his son, Ira B. Cole, one of the plaintiffs, was occupying the premises as a tenant under his father. Ira S. B. Cole died intestate, March 17, 1893, leaving five heirs at law, two of whom (Ira B. Cole and Sabra J. Kaiser) joined in bringing this action, making the others (said Betsey C. Moody, Edwin Cole, and Charlotte Losee) defendants, as their consent to join as plaintiffs could not be obtained. It was alleged, in substance, that the farm was worth $5,500 at the time, and that Ira S. B. Cole was about 88 years of age, nearly blind, and very infirm and feeble, and was mentally incompetent to transact business, or guard or protect his interests; that the defendants Cassius M. Moody, Betsey C. Moody, R. W. Roberts, Alice Farmer, and Peter Getzinger conspired together to defraud him of his farm, and to procure a deed thereof for half of its value, and appropriate the proceeds thereof to the use of said Moody and wife, and divide the profits between the defendants Roberts and Getzinger,--the deed to be taken to the defendant Alice Farmer, a member of the family of said Roberts, who was to convey the land to Getzinger; that the consideration for the deed to said Farmer was to be $3,000, and of the deed from Farmer to Getzinger $4,200; that said $3,000 was to be paid out of the money received from Getzinger, and the remaining $1,200 was to belong to said Roberts. The complaint alleges, in substance, the execution of said scheme, and that the deed was procured by the fraudulent, undue, and unlawful influence of said Moody, and that the grantor was induced to give said Moody $500, and his wife, Betsey C., $2,000, of the purchase price of $3,000, and Roberts received and retained to his own use $1,200 of the $4,200 in fact paid by Getzinger for the farm; that the said Ira S. B. Cole had no other property than his farm; that no agreement or provision in the transaction was made for his support; and that no notice of said proposed transaction had been given to his other relatives; and the plaintiffs asked judgment that the deed from Ira S. B. Cole to Alice Farmer, and also the deed from Farmer to Getzinger, should be set aside and canceled, and, if the land should be beyond the reach of the decree, that the defendants account for two-fifths of said moneys paid by said Getzinger for the farm, and for general relief. The defendants Moody and wife, in their answer, admitted the age of Ira S. B. Cole; that he had lived with them more than 16 years; and averred that they had no knowledge or information sufficient to form a belief as to the value of the land, the deeding of it to Getzinger, the appropriation of $1,200 by Roberts, or that no notice of said negotiations or transactions had been given to others of his relatives; and alleged that the sale of the land was not made at their instigation, but one Nevitt was, at said Cole's request, called on to prepare the deed, and that they in no way influenced or controlled anybody in the matter; and they claimed that the $2,500 received by them was no more than a fair compensation for the care and support of said Cole, and for Betsey C. Moody's fair share of his estate. The defendants Roberts, Farmer, and Getzinger, in their answers, after admitting that Cole was 88 years of age, and lived with the Moodys many years, his death March 20, 1893, intestate, that he deeded the land to Alice Farmer, and she deeded the same to Getzinger for $4,200, averred a want of knowledge or information sufficient to form a belief as to all other matters. Getzinger claimed, in his answer, to have purchased the land from Alice Farmer in good faith, for a valuable consideration, believing she had a good title thereto. The defendant Charlotte Losee, one of the claimant heirs, admitted the truth of the complaint, and claimed the same relief demanded by the plaintiffs. At the trial evidence was given by six farmers residing near the land that it was worth, at the time the deed was made, $75 to $80 per acre. Evidence was given showing the death of Ira S. B. Cole intestate, and that his heirs were as stated; that he had lived with the defendants Moody and wife 14 years before his death; that one of the plaintiffs (Ira B. Cole) was living on the premises at the time the deeds in question were made, as the tenant of his said father, and he had no notice that any transfer was to be made, and two others of his daughters (Mrs. Kaiser and Mrs. Losee) lived near him; that he first learned of the conveyance December 1, 1892, from Getzinger. The defendant Betsey C. Moody testified: That neither she nor her husband had any agency for the sale of the land. That her father executed the deed at their house. That she never saw Alice Farmer, and she was never at their house, and that her father never saw her during the negotiations. That her father conducted the negotiations. “I suppose he sold the property. I didn't hear anybody make any bargain with him. I know that Roberts wrote a letter to him in regard to it. I don't know of any one conducting the negotiations except Roberts. Mr. Roberts never saw father about it. There wasn't anybody that ever saw father. I know Roberts bought the land. He came to the house, but I don't know how long before he bought the place. He did not see father, or ask to see him, as he was lying down for his afternoon nap.” She further testified: That she “wrote letters to Roberts about the sale of the farm,--did not know, could not tell, how many; could not make an estimate. Roberts wrote father about it. All of father's letters came in my husband's name; were directed in his name. Couldn't tell how many there were.” That she had no copies of them. That the letters were given by her husband to Roberts about the time the suit was commenced against Getzinger for trespass. Was not in the room when the deed was executed to Alice Farmer. That $2,000 of the $3,000 for which the land was sold--being at the rate of $40 per acre--was given to her, and $500 to her husband, in bank checks, because he had lived with them so many years. He said it was for his care and support. That she did not ask him for it, and there never was any arrangement that he should pay for his board. The defendant Cassius M. Moody testified: That he did not conduct any negotiations for a sale of the property. That he had a conversation with Roberts about it after he had received a letter. “He asked what I wanted for my farm. I told him I didn't own any farm; that the farm belonged to Father Cole; and that was all that was said about the farm. Saw him again in Oshkosh, but don't remember anything about the conversation we had. Had a communication from him between these times, and met him several times, but don't remember any conversation we had except the first time.” He testified having given Roberts all the correspondence in regard to the farm. Plaintiffs' counsel here called on Roberts to produce these letters, in response to a subpœna duces tecum served on him 11 days previous, and the said Roberts, being sworn, testified that he received the letters written by him to Moody, and that, if he had them at all, they were at his office, 200 miles distant, in Shawano county; that he had not seen them for over two years; that he had some one in possession of his office, running the bank, but did not know where the letters were; had not made any examination to see; had not written to his clerk, and had taken no steps to try to get them under the subpœna. Plaintiffs applied to the court for an attachment against Roberts, to compel production of the letters. The court refused the application. Plaintiffs applied to strike out the answer of Roberts for not producing them, but it was refused. C. M. Moody further testified: That Roberts did not see the old gentleman Cole at all during the negotiations, to his knowledge. “All the talk he had up there about it was with me, except the letters he wrote.” That he (Moody) was not present when the deed was executed. That he paid back $80 of the purchase money to Roberts, but not out of the $2,500 given to himself and wife. “This was for a shortage of land, and Roberts' expenses. His exact words to me were: ‘Take the certificate, and draw the money from the bank, and pay Mr. Roberts whatever he asks.’ No sum was named.” That he afterwards told him he had paid Roberts $80, and did not remember that he said anything. That the sale was consummated, the deeds delivered, and money paid over, without any notice, so far as he knew, to any one of the old gentleman's relatives. It appeared that Alice Farmer did not buy the land, or pay anything for it, and had no interest in the transaction, but took the deed, and executed a conveyance to Getzinger, at the request of Roberts. The defendant Getzinger testified: That he had two conversations with Roberts before he got the deed from Alice Farmer, in the first of which Roberts told him his farm was hardly large enough, to which he replied that he knew no neighbor who would sell unless Mr. Cole. That Roberts said he would go up that or the next week, and...