Gibbons v. Brimm

• Decision Date: 02 May 1951
• Docket Number: No. 7596,7596
• Citation: Gibbons v. Brimm, 230 P.2d 983, 119 Utah 621 (Utah 1951)
• Parties: GIBBONS, v. BRIMM et ux.
• Court: Utah Supreme Court

Page 983

230 P.2d 983

119 Utah 621

GIBBONS, v. BRIMM et ux.

No. 7596.

Supreme Court of Utah.

May 2, 1951.

L. E. Nelson, Logan, for appellant.

George C. Heinrich, Logan, for respondent.

CROCKETT, Justice.

This case follows a familiar pattern. An elderly person, (in this instance the aunt, Catharine S. Gibbons) having some property and an unusual affection for a younger relative (her niece, the defendant, Hilda A. Brimm) conveys her property to her niece for which the latter is to provide her a home and care during the remainder of her lifetime; and as is fairly common in this type of situation, human frailties cause the plan to go awry. At the time of the agreement the plaintiff, herein sometimes called Aunt Catharine, was aged 75 and in ill health; she owned a home and furniture, some farm land and farm equipment at Mendon, Cache County, Utah, and also possessed a savings and checking account. She conveyed all of the aforementioned property to Hilda by deed, bill of sale and assignment, in consideration for the latter's promise to provide her with a home and care, including costs of medical, hospital and nursing services and proper burial.

As is quite usual, there was a third ingredient with which aunt Catharine had not reckoned, Hilda's husband, for whom she did not have the same love and affection she had for her niece. After a few months of comparative success under this arrangement, small dissensions arose, grew into greater troubles and ended in a complete rift, resulting in this law suit by the plaintiff to recover her property. From an adverse judgment, plaintiff appeals.

The plaintiff apparently set out to make two main contentions in seeking to avoid the effects of the deed, bill of sale and assignment. (1) That she was so infirm of body and mind that her will was overcome to the extent that the execution and delivery of the documents were not her voluntary acts; and (2) That the defendants breached the agreement to provide her a home and care, which entitles her to rescission. The burden of proving these contentions was upon the plaintiff.

It is to be kept in mind that, even though this is a case in equity in which this court will review the record, yet we will not disturb the findings of the trial court unless the evidence clearly preponderates against them or the court manifestly misapplied proven facts. Stanley v. Stanley, 97 Utah 520, 94 P.2d 465; Maxfield v. Sainsbury, 110 Utah 280, 172 P.2d 122.

We assume that it is unnecessary to remind appellant that it was the prerogative of the trial court to believe the defendants' evidence if he chose to. In determining which evidence he would credit, because of his opportunity of seeing the parties and the witnesses, observing their appearance, their demeanor on the witness stand, their apparent candor or their want of it, he could appraise certain intangibles not observable by this court from the record. Without delineating them, we observe that the evidence reveals some discrepancies in plaintiff's testimony concerning the ownership and disposition of personal property which may have given rise to some skepticism on the part of the trial court with respect to plaintiff's frankness, or perhaps better stated, her lack of memory and understanding of details due to her infirmity and advanced age.

The plaintiff made some effort in the evidence to support her first point that the execution of the conveyances were not voluntary. The sequence of events themselves, without more, would be sufficient refutation of this contention. But taken together with other evidence there is ample to warrant the court in refusing to believe that plaintiff had met her burden of proof that she did not intend the conveyances. The contention is obviously untenable and at the oral argument in this court, her counsel stated that she relied solely on the second ground.

We therefore address ourselves to the plaintiff's assertion that she is entitled to rescission and cancellation of the documents of conveyance because the defendants failed and refused to perform their part of the agreement. While there is some authority to the contrary, we think that the weight of authority and the better view is that in cases of this character, where the grantee repudiates, or substantially fails to perform the agreement, that rescission is a proper remedy. Many cases are cited and discussed in plaintiff's brief to that effect, most of which are referred to in an annotation, 112 A.L.R. 670. At page 676 it is stated: 'The doctrine which obtains in the great majority of the states is that conveyances of property in consideration of agreements to furnish support are in a class peculiar to themselves, and that ordinarily, if the grantee in such a conveyance repudiates, or substantially fails to perform, his agreement, a cancelation of the conveyance, and a rescission, may properly be decreed.' See Chadd v. Moser, 25 Utah 369, 71 P. 870, where this was assumed to be the rule in this state, but where, as here, the court found the evidence insufficient to show a breach.

Were this a human interest story, the evidence of the conduct and relationship between these parties might be interesting to relate. But because of the desirability of limiting judicial opinions to the minimum necessary to adequately cover the point involved, a brief statement of some of the evidence which will support the trial court must suffice.

The plaintiff's evidence was, on many points directly contrary to that of the defendants. However, the latter presented evidence which the trial court could, and apparently did believe: that aunt Catharine had promised that upon her death Hilda should inherit what she had; had made out a will giving her property to Hilda and upon that being done, Hilda had conveyed to Catharine her one-ninth interest in the property; that about June 1, 1948, when Catharine was in poor health and could not be alone, she called Hilda who had been teaching school in Ogden, and asked her to come to Mendon to take care of her and the farm. Hilda and her husband did this and the latter worked the farm all that summer and fall. The court found his services were reasonably worth the sum of $1200 (this amount was neither charged nor paid). During August, Catharine authorized Hilda's joint use and control of her bank account. In January, 1949, the parties orally agreed to the arrangement earlier described herein; and descriptions of the plaintiff's property were obtained from plaintiff's attorney and deeds prepared, which, according to plaintiff's own testimony, were in her possession two or three days before she signed them. On January 25, 1949, plaintiff executed and delivered the deed to the real estate and a bill of sale to the personal property to Hilda. On the 23d day of February, 1949, the plaintiff assigned to Hilda a note and mortgage on some real estate owned by her in Power County, Idaho. Catharine said that she was glad that she had everything fixed up; that someone else had the worry. As late as June, 1949, the plaintiff authorized the defendants to make a settlement with the plaintiff's brother, John C. Anderson, to purchase from him a one-ninth interest in the property, which they did, using $2,000 of the plaintiff's bank account for that purpose; this one-ninth interest was, with the plaintiff's approval, conveyed to Hilda.

It would unduly burden this opinion to detail the difficulties and the comings and goings of aunt Catharine from Hilda's home to live with others and back until on February 13, 1950, Catharine left for good and demanded her property back. In summary, defendants' evidence is that Catharine lived with Hilda during most of that time and that they got along fairly well; that Hilda did everything she reasonably could to comply with the agreement and provide a home and the necessities of life, as well as love and companionship for her aunt; that her husband, Byron Brimm, cooperated to the best of his ability but because of the dislike the plaintiff had for the latter, she made it difficult for Hilda to do so, even going so far as to suggest that Hilda divorce him as a condition to...