Green v. Hulse

• Decision Date: 01 June 1914
• Docket Number: 7239.
• Citation: 142 P. 416,57 Colo. 238
• Parties: GREEN v. HULSE.
• Court: Colorado Supreme Court

142 P. 416

57 Colo. 238

GREEN v. HULSE.

No. 7239.

Supreme Court of Colorado

June 1, 1914

Rehearing Denied July 8, 1914.

Error to District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by Clara M. Hulse against Maud O. Green and another. Judgment for plaintiff, and defendant Green brings error. Reversed and remanded.

Barker Boyd & Toney, of Denver, for plaintiff in error.

Harry E. Kelly and Charles H. Haines, both of Denver, for defendant in error.

GARRIGUES, J.

1. The subject of this action is the title to lot 38 and the south half of lot 39, block 16, Berkeley, city and county of Denver. Plaintiff's object is to recover possession and damages, and cancel a deed and trust deed, as clouds upon the title.

The complaint alleges that Clara M. Hulse is the owner in fee simple of the property; that her husband's mother, Persis Hulse, died intestate October 14, 1909, owning the property that for a year or more prior thereto she had been of unsound mind and incapable of conveying property; that, well knowing her condition, defendant Maud Green June 25, 1909, by threats, duress, and undue influence, coerced Persis Hulse into signing, acknowledging, and delivering a deed purporting to convey the property to Green, as her free and voluntary act, and the same day ousted Persis and took possession of the premises herself, which ever since she has detained; that August 17, 1909, Green borrowed $700 from defendant Emma Peterson and secured the loan by a trust deed on the property; that Peterson, when she made the loan, knew Persis was mentally unsound, and that Green had no title; that Burns Hulse, the son and sole heir of Persis, inherited all the property from his mother, and October 16, 1909, deeded it to his wife, the plaintiff, and that Green's deed and the trust deed are clouds upon her title. Prayer for possession damages, and that the deed and trust deed be declared void and canceled.

The answer admits all the conveyances, and alleges the deed to Green was made by Persis of her own free will, in consideration of the following agreement, which Green has kept and performed, that she owns the property in fee simple, and denies the other allegations of the complaint:

'In consideration of receiving absolute title to lot 38 and the south half of 39, in block 16, Berkeley, city and county of Denver, Colorado, I hereby agree to take care of Mrs. Persis P. Hulse during her natural life, furnishing her with comfortable board, lodging, and clothing, and such medical attendance as may be necessary; also to pay funeral expenses in case of death. [Signed] Maud O. Green.'

It then pleaded an equitable defense of estoppel by conduct in pais, to the effect that Persis Hulse, living alone, 75 years old, infirm, disagreeable, and hard to get along with, was without means and in need of help, with no one to care for her; that her son Burns and his wife (the plaintiff) refused to care for her or allow her to live with them or to come to their home; that her sister, 85 years old, had, in consideration of maintenance, deeded her property to Green, who was caring for her, and Burns and his wife proposed to Green that she make the same arrangements with Persis and care for them both; and that it was through the desire, solicitation, advice, consent, knowledge, acquiescence, and approval of plaintiff and her husband that the deed and contract were executed. This portion of the answer was stricken on plaintiff's motion. At the trial a jury was waived, and the court confined the issues and narrowed the case to the trial of the single question of the sanity of Persis Hulse at the time of making the deed, and, in effect, turned the case into an inquisition in lunacy, and found that when she made the deed she was a lunatic, incapable of making a conveyance, and that the deed was on that account, at the time it was made, absolutely void, and of no more legal effect than if it had never been executed. Plaintiff was awarded possession and damages, and the deed to Green and Peterson's trust deed were canceled.

2. Persis Hulse, about 75 years old, owned and lived alone in the property in controversy. She was disagreeable, without means, infirm, mentally deranged or unbalanced, and needing attention, with no one to care for her. Her son Burns and his wife lived in the city, but did not want her in their house, and she objected to living with them. She had a sister 85 years old, who some time previously had deeded her property to Green in consideration of maintenance, and Green was taking care of her. Green was their niece, and Persis wanted to make a similar arrangement so she could be with her sister, and have Green care for them both. The matter was frequently discussed between Persis, her elder sister, Mrs. Green, Burns Hulse, and plaintiff, and it was their general opinion that Persis should deed the property to Green. Burns participated in some of these conversations, and suggested, approved, and advised the transaction. Accordingly, June 25, 1909, Persis, in company with others, went to a notary public at the Albany Hotel, where the deed was prepared, signed, acknowledged, and delivered to Green, who in turn executed and delivered the contract. Burns knew they were going to the hotel to make these papers, and had promised to be present and assist. The went there ostensibly for that purpose, but for some reason, left before they arrived, did not return, and was not present when the papers were executed. Plaintiff and her husband considered the making of the deed and contract before their execution, and raised no objection, and expressed their willingness that the transaction should be consummated. It was fully and carefully discussed and considered by them, and the papers were finally executed with the consideration and formality usually attending the execution of such documents. Green then took Persis to her home, where she cared for her until her death, except during a short period when she was at the hospital for treatment. Green borrowed $700 from Mrs. Peterson and secured it by a trust deed on the property. Peterson loaned the money in good faith, without any knowledge of the alleged infirmity in Green's title, and the deed contained no clause showing the consideration was maintenance, and that a failure to perform the acts promised should invalidate it and entitle the grantor to a reconveyance. Shortly after Persis' death, plaintiff obtained a quitclaim deed from her husband, and brought this action.

Plaintiff offered no evidence tending to show fraud, undue influence duress, coercion, undue advantage, persuasion, overreaching, circumvention, or any wrong or improper act or bad faith or evil purpose of any kind, going to the fairness of the transaction. When defendant attempted to show the transaction was fair and right, and for the best interest of Persis, the court excluded the evidence. It would hear evidence on no disputed allegation other than the sanity of Persis Hulse, and permitted no other matter to be gone into. A preponderance of the...