Else v. Kennedy

• Decision Date: 23 October 1885
• Citation: 25 N.W. 290,67 Iowa 376
• Parties: ELSE AND OTHERS v. KENNEDY.
• Court: Iowa Supreme Court

67 Iowa 376

25 N.W. 290

ELSE AND OTHERS

v.KENNEDY.

Supreme Court of Iowa.

Filed October 23, 1885.

Appeal from Mahaska circuit court.

Plaintiffs brought this action to quiet in each of them the title to one-sixth of a certain tract of land. They claim as heirs at law of Elizabeth Else, deceased, who was their mother, and they allege that defendant, who is their sister, claims the whole of the premises under a certain deed to which their mother's name was signed before her death, and which has been placed of record since she died. They allege that said deed was obtained by defendant without consideration and by undue influence; that it is void for uncertainty in the description of the property conveyed; and that it was never executed and delivered by their mother, but that her signature was attached thereto when she was in a dying condition, and when she was incapable of understanding or executing a contract; and that after her signature was attached to said deed it was altered in a material respect by defendant's attorney with her approval, but without the knowledge or consent of said Elizabeth Else. Defendant denies the allegations that she obtained said deed by undue influence, and that it was not executed and delivered by Elizabeth Else, and that it was altered after its execution without the knowledge or consent of their mother. And in a cross-petition she prays that the description of the property contained in said deed be so reformed and corrected as to make the instrument describe the property intended to be conveyed by it, and that her title to the property be quieted. The circuit court dismissed both petitions, and both parties appeal.John F. Lacey, for plaintiffs.

Geo. W. Lafferty, for defendant.

REED, J.

Elizabeth Else died on the twenty-second of August, 1882. The deed in question was signed on the day before her death. The property which it purported to convey at the time her signature was attached to it was the N. W. 1/4 of the N. E. 1/4 of section 19, in township 76, range 16. The property which she actually owned at the time is lot 1, in S. E. 1/4 of the N. E. 1/4 of section 24, township 75, range 16, and 12 feet in width off of the south side of lot 2, in the same subdivision of said section. The notary public who wrote the instrument discovered on the same day on which it was signed that a mistake had been made in the description of the property, and undertook to correct the same. He struck out the description which was written in the deed when Mrs. Else's signature was attached to it, and wrote in lieu of it the following description: “N. pt. lot one, (1,) S. E., N. E., section 24, town-ship 75, range 16. 12 ft. off S. pt. lot 2, S. E., N. E., section 24, township 75, range 16.” He informed defendant of this alteration on the day which it was made, but Mrs. Else's attention was not called to the matter. Mrs. Else was taken sick 36 hours before the deed was signed, but her condition had been regarded as dangerous only for six or eight hours before the signing of the deed. Her disease was cholera morbus, and she was very much prostrated at the time. Her physician describes her as being in a condition of collapse, and she was under the influence of an opiate which the physicians had administered to relieve her of the cramping caused by the disease. The physician testified that he visited her on the day on which her signature was attached to the instrument, both before and after it was signed, and that while her mind did not act vigorously, and, except when spoken to, she paid but little attention to what was going on about her, yet, when she was spoken to she answered responsively and intelligently to such questions as were asked her. The notary public who wrote the deed testified that he explained to her the character of the instrument, and the property to which it related, and that, while she did not speak, she indicated by a nod of the head that she understood him, and comprehended the character of the instrument, and that when he asked her whether the deed was her voluntary act she indicated her assent in the same manner. When the signature was attached she took the pen in her hand, and by the assistance of the notary, who steadied and guided her hand, wrote her name.

The testimony of other witnesses who were present at the time of the transaction tends strongly to show that her condition at the time was such that it is hardly possible that she could have comprehended what was being done. She acquired the property in question by devise from her husband, who died in 1879. She also acquired other real estate in the same manner, which she had sold in the mean time, and she paid a portion of the money derived from this sale to four of her children, taking from each a written agreement to pay her 10 per cent. interest per annum on the amount so advanced, and which provided that if the interest should be paid annually when due the principal should at her death be treated as an advancement. Defendant and Mrs. Mattox, one of the plaintiffs, did not receive any money under this arrangement, but the evidence shows that their mother retained for each of them the same amount which was advanced to each of the other children, which she desired to advance to them upon the same terms, but which they had never accepted. It is shown that on several...