Flynn v. McHugh

• Decision Date: 31 January 1955
• Citation: 129 N.E.2d 848,98 Ohio App. 393,57 O.O. 441
• Parties: , 57 O.O. 441 FLYNN, Appellee, v. McHUGH et al., Appellants.
• Court: Ohio Court of Appeals

Page 393

98 Ohio App. 393

129 N.E.2d 848, 57 O.O. 441

FLYNN, Appellee, v. McHUGH et al., Appellants.

Court of Appeals of Ohio, Lucas County.

Jan. 31, 1955.

Syllabus by the Court.

1. Where a warranty deed contains no condition for forfeiture or any other condition affecting in any way the validity of the instrument conveying premises and reserving a life estate, and such instrument is also free from any ambiguity or uncertainty, it cannot be declared invalid except upon evidence that is both clear and convincing.

2. Courts will not undertake to find or determine the question of the adequacy of consideration supporting a contract or deed if it appears that there was any good or valuable consideration which passed from and between the contracting parties.

Joseph P. Sheehy, Toledo, for appellants.

John J. McCarthy, Toledo, for appellee.

DEEDS, Judge.

This is an appeal on questions of law and fact from a judgment of the Court of Common Pleas of Lucas County. The parties will be referred to herein as they appeared in the trial court, the plaintiff appellee as plaintiff and the defendant appellants as defendants.

The suit was commenced in the Court of Common Pleas as an action for the rescission and cancellation of a warranty deed. The cause has been submitted to this court for a review upon a transcript of the record and proceedings had in the Court of Common Pleas, including the pleadings, and also upon the evidence contained in the bill of exceptions and the arguments and briefs of counsel for the parties respectively.

It is alleged in substance in the petition of the plaintiff that she was the owner of certain real estate as described and that plaintiff is a person of advanced years and of weakened physical condition and poor health; that the defendants are husband and wife and are the nephew and niece respectively of the plaintiff; that for some time prior to June 12, 1953, plaintiff had discussed with the defendants the possibility of defendants moving into plaintiff's home in a separate apartment and entering into an agreement to perform certain services in connection with the premises.

Plaintiff alleged further that in consideration of the promises of the defendants to perform the various services, plaintiff agreed to transfer and convey her real estate as described to the defendants; that to accommodate the defendants, plaintiff had the property remodelled at a cost of $1,000; that on June 12, 1953, defendants came to the residence of the plaintiff with an attorney retained by the defendants; and that plaintiff, relying upon the representations of the defendants and believing them to be true, accepted defendants' offer to contract, and executed and delivered a warranty deed, thereby conveying said premises to the defendants, reserving to plaintiff a life estate in the real estate.

Plaintiff alleged further that the actions and conduct of the defendants were false and were for the purpose of defrauding plaintiff and of avoiding any obligation, consideration or value for the conveyance of the property; that at the time of the conveyance plaintiff and defendants enjoyed a confidential relationship of aunt and niece and nephew; and that defendants, by exercising such confidential relationship wrongfully and fraudulently influenced plaintiff to convey the property described in the petition without any binding agreement by defendants to perform the services required of the defendants.

Plaintiff alleged further that following the execution and delivery of the deed to the defendants, the defendants refused to assist plaintiff with plaintiff's housekeeping and other services required under the agreement between the parties; that defendants threatened to evict plaintiff from her home; and that on or about November 23, 1953, defendant Thomas P. McHugh twisted the arm of plaintiff and threatened her with physical violence.

Plaintiff alleged that the deed executed and delivered to the defendants on June 12, 1953, is of no value and is without consideration; that defendants have entirely failed to perform the terms and conditions upon which the deed was to be based, executed and delivered; and that any consideration contemplated at the time of the execution and transfer has failed and the deed is wholly without consideration. By the prayer of her petition, plaintiff prays that the contract and deed be ordered to be delivered up and cancelled and that the title to the real estate be quieted in the plaintiff, and for such other and further relief as plaintiff may be entitled to in the premises.

The answer of the defendants admits the agreement to perform certain services for the plaintiff in consideration of the execution and delivery by plaintiff of the deed conveying the real estate described to the defendants and that defendants were to occupy an apartment in the property. Defendants deny that they were guilty of fraud or misrepresentation in securing a conveyance of the property from the plaintiff, and allege that the defendants have performed all the services required of them by the terms of their agreement with the plaintiff, except that after a period of about one month the plaintiff refused to co-operate with the defendants and has refused the acceptance of any services from the defendants, although the defendants have been ready, willing and able at all times to perform fully the services which they undertook to perform by reason of the agreement. The defendants, by their answer, pray that the petition of the plaintiff be dismissed and that defendants recover their costs.

The warranty deed which appears in the record before us as an exhibit, the due execution of which has not been questioned or put in issue, recites $1 and other good and valuable considerations as being the consideration for the conveyance of the real estate described, and further excepts and reserves to the plaintiff as grantor an estate in the premises for and during her natural life.

The agreement between the parties concerning the services to be rendered by the defendants on behalf of the plaintiff was oral and no part of it was in writing. Consequently, it is necessary for the court to determine from the testimony in the record the terms of the agreement between the parties, which was a principal consideration for the execution and delivery of the deed by the plaintiff to the defendants.

The property in question consisted of a two-story frame building which was originally a residence and at the time of the transaction involved in the case had been converted into four-family apartment dwelling. The plaintiff had been employed regularly for many years at the district nurse association in the city of Toledo and had acquired the property from her earnings, and had, prior to the transaction with the defendants, been occupying a lower apartment in the building, and on account of her age, being about eighty years, and infirmities, desired to have her nephew, the defendant Thomas P. McHugh, and his family occupy an apartment in the building for the purpose of performing certain services in the upkeep of the premises and in the event the plaintiff became disabled to also care for the plaintiff and perform the household services required in the maintenance of the apartment occupied by the plaintiff. It was also agreed that the defendant Thomas P. McHugh was to pay the expenses incurred for gas in heating the premises, for electric current, water bills and taxes, and defendants were to mow the lawn, maintain the premises in reasonable repair, and, also, to meet the requirements of the other tenants occupying the premises; and plaintiff was to receive the rent paid by the two tenants occupying the remaining apartments.

It is undisputed that since July 1953, when the defendants and their three young children took possession of and have since occupied an apartment in the property, the defendant Thomas P. McHugh has paid the expenses for gas, electricity, water and the taxes; and it is also undisputed that he and his wife, the defendant Marianna K. McHugh, have rendered a great many other services for and on behalf of the plaintiff pursuant to the agreement between the parties. Further, the testimony of the defendants is to the effect that they have stood ready, able and willing to perform all the services which they undertook to perform under the agreement.

The principal evidence of the plaintiff as contained in the bill of exceptions in support of her claim that there has been a failure on the part of the defendants to perform the services required under the agreement, is the testimony of the plaintiff that a certain stairway at the rear of the premises was allowed to be and remain out of repair by the defendant Thomas P. McHugh; that defendants failed to remove ashes or keep the basement of the premises clean; and that on one occasion, when plaintiff had visited the apartment of the defendants respecting the care defendants should give their children, the defendant Thomas P. McHugh twisted her arm with considerable violence so that she was unable to use it for a period of about one month; all of which was denied by the defendants.

It appears further from the evidence in the record that the defendant Thomas P. McHugh since early childhood had suffered from a weakness in one of his legs and that the condition has continued throughout most of his life, he now being about thirty-five years of age, and that the plaintiff had affection for and was interested in and did furnish the defendant with help and assistance during his early childhood on account of his infirmity; and it is undisputed that plaintiff desired and intended that Thomas P. McHugh should have the property of the plaintiff after her death, but did not desire to make a will for the reason that it might, as plaintiff anticipated and expressed herself, be contested by other relatives. We also find from the evidence in the record that although the plaintiff did...