Ells v. Ells

• Decision Date: 15 September 1976
• Docket Number: No. 11749,11749
• Citation: 245 N.W.2d 498
• Parties: Carrie ELLS, Plaintiff and Respondent, v. Mabel ELLS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 498

245 N.W.2d 498

Carrie ELLS, Plaintiff and Respondent, v. Mabel ELLS, Defendant and Appellant.

No. 11749.

Supreme Court of South Dakota.

Sept. 15, 1976.

Lee A. Tappe, Platte, for plaintiff and respondent.

Owen R. Wipf, Wagner, argued the cause. With him on the brief was Acie W. Matthews, of Willy, Pruitt, Matthews & Jorgensen, Sioux Falls, for defendant and appellant.

WOLLMAN, Justice.

Edwin and Carrie Ells, an elderly couple residing in Platte, South Dakota, began experiencing financial problems in the spring of 1970. Their income consisted of some $78 per month in social security payments and rental income of approximately $300 per year from 80 acres of farm land that they owned. On March 27, 1970, the Ells had a meeting at their home with their four children to discuss their financial difficulties. After some discussion Herschel Ells, one of the sons, agreed that he would pay the taxes, special assessments and insurance on the property and would advance money to his parents as needed. It was agreed that Edwin and Carrie would deed the city and farm property to Herschel and that they would continue to collect the rent from the farm property and continue to live in the residence in Platte during their lifetimes. Upon the death of the survivor the property was to be sold, with Herschel to be reimbursed for all amounts advanced by him, together with 5 1/2% Interest on the money so advanced, with the balance of the proceeds of the sale of the real property to be distributed in equal shares to the four children.

On March 28, 1970, Edwin and Carrie executed warranty deeds conveying the city and farm property to Herschel and his wife, Mabel, (appellant herein).* After the deeds had been signed Herschel Ells asked his attorney to prepare a written instrument setting forth the terms of the agreement that had been reached at the March 27, 1970, family conference. The attorney did so after advising Herschel that the arrangement that had been agreed upon was not the proper way to handle the matter. Notwithstanding this advice, Herschel presented the written agreement to his parents and they signed it on April 2, 1970. Herschel recorded the deeds on that date but apparently never signed the agreement himself.

Edwin Ells died on December 25, 1970. On March 17, 1971, Herschel stopped to visit his mother at her home in Platte. After some discussion concerning the outstanding curb and gutter assessment against the city property, Carrie Ells remarked that she would like to go to Wisconsin to visit some sick relatives but did not feel as though she could afford to make the trip. Herschel replied that he would give her the money to make the trip, and later said, 'I will buy the farm if I have to.' Apparently Herschel offered to pay $90 per acre for the 80-acre tract. He then wrote out a check payable to Carrie in the amount of $500 bearing the notation, 'payment on land.' Carrie Ells cashed the check on the morning of March 19, 1971. Herschel Ells died sometime that day. Up to the time of his death he had advanced approximately $1200 to pay taxes, special assessments and insurance on the property.

Prior to Herschel's death the tenant who was farming the 80-acre tract had paid the rent to Edwin and Carrie. The tenant testified that sometime in 1971 ('about income tax time') he had asked Herschel what was going to happen, to which Herschel replied that '* * * he was in the process of probably buying the land.' The tenant paid all rent to appellant after Herschel's death.

Both the city property and the 80-acre tract were listed as asserts in Herschel's estate. Although appellant conveyed...