Hegge v. Hegge

• Citation: 184 N.W. 800,44 S.D. 555
• Decision Date: 19 October 1921
• Docket Number: 4909
• Parties: OLUF HEGGE, Administrator of the Estate of Sivert O. Hegge, deceased, and Karen O. Hegge, Plaintiffs and appellants, v. ALFRED S. HEGGE and NETTIE HEGGE, Defendants and respondents.
• Court: South Dakota Supreme Court

44 S.D. 555

184 N.W. 800

OLUF HEGGE, Administrator of the Estate of Sivert O. Hegge, deceased, and Karen O. Hegge, Plaintiffs and appellants, v. ALFRED S. HEGGE and NETTIE HEGGE,

Defendants and respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Louis L. Fleeger, Judge

#4909--Reversed

Robertson & Cloud

Attorneys for Appellants.

Krause & Krause

Attorneys for Respondents.

Opinion filed October 19, 1921

WHITING, J.

This is an appeal from an order sustaining a demurrer to a complaint. The only ground of demurer now relied upon by respondents, and therefore the only one which we feel called upon to consider, is that. the complaint does not state facts sufficient to constitute a cause of action. Defendant Nettie Hegge is the wife of defendant Alfred S. Hegge.

The complaint confesses the following facts: July 3, 1912, one Sivert O. Hegge was the owner of three tracts of farm land, one of which was occupied by himself and wife, Karen O. Hegge, as their homestead. Hegge and wife had a family consisting of some 11 children. The father, being in poor health and desiring to make a disposition of his property to his children and his wife, and also to provide for the support and maintenance of himself and wife during the balance of their lives, made a division of his property. To this end he took into consideration advancements which he had made to certain of his children, and undertook to make such a division of his property as, in connection with such advancements, would give to each one of his said children property of the net value of $3,000. To accomplish this, he and his wife, on July 3, 1912, placed mortgages on these tracts of land, which mortgages secured the payment of a certain sum to each of eight of the children and to the mother; and he and his wife. on the same date, conveyed one of the three tracts of land, subject to the mortgage thereon, to each one of the other three children. The three grantees accepted the deeds, and afterwards made the payments secured by the mortgages. The father and mother deeded the homestead to the defendant Alfred S. Hegge for the stated consideration, named in said deed, of $11,500. At the same time, and as part of this same transaction, and forming a part consideration for the deed to this defendant, defendant entered into the agreement and gave the note and mortgage hereinafter mentioned.

The deed to defendant Alfred S. Hegge was a warranty deed with ordinary covenants, and containing no reference therein to the agreement which formed a part consideration therefor. Making up the consideration of $11,500, named in said deed, were notes and mortgage entered into by defendant, whereby he undertook to pay the sum of $4,000 (being $1,000 to each of three sisters and $1,000 to his mother), which notes, as above stated, have been paid; his $3,000 share of his father's property; and a $4,500 note and mortgage which he entered into as security for the performance of his written agreement to support his parents. In this written agreement, he covenanted to care for his parents during their lifetime, to furnish them with necessary food and clothing, to care for them during sickness, to furnish them with rooms in the dwelling house located on the homestead, and to make to them certain cash payments—being the interest on the $4,500 note above referred to. The mortgage provided that, in case of failure of defendant to fulfill the agreemnt or pay the $4,500, the said mortgage, together with the note thereby secured, should become immediately due and payable, and that:

"The said mortgage may, at the option of the parties of the second part, be immediately foreclosed by the sale of the said premises as therein provided."

The note for $4,500 was due in 15 years, and bore interest at 2 per cent. per year, and was conditioned that it should become void on the death of both payees. The agreement also provided that the note and mortgage should become null and void upon the death of the father and mother, and that, upon satisfactory proof of such deaths, they should be discharged of record by the proper officer. As a matter of fact, the land conveyed to this defendant, instead of being of the value of $11,500, was of the actual and marketable value of at least $20,000, and was, at the time of the commencement of this action, of a value greatly in excess of $20,000. The reason why this land was treated as of a value so much below its real value was to give to the defendant Alfred S. Hegge more than an equal share of the property of his father, and this solely because of the agreement which he was entering into to care for his said father and mother. The father died soon after July 3, 1912. From the time when the agreement was entered into and possession of said land taken by the defendant, defendant failed and neglected, at all times, to comply with any of the terms and conditions of said note, mortgage, and agreement. He failed and neglected to maintain and support his mother as he had covenanted to do in said agreement. He has, at no time, contributed in any manner or form to her support and maintenance. He has failed to furnish necessary food and clothing, or any clothing for her. He has not at any time furnished or caused to be furnished any medical care or treatment for her, though she has, at times, been in need of same. His conduct has been such as to render it impossible for her to reside in the dwelling house written agreement, he covenanted to care for his parents during their lifetime, to furnish them with necessary food and clothing, to care for them during sickness, to furnish them with rooms in the dwelling house located on the homestead, and to make to them certain cash payments—being the interest on the $4,500 note above referred to. The mortgage provided that, in case of failure of defendant to fulfill the agreemnt or pay the $4,500, the said mortgage, together with the note thereby secured, should become immediately due and payable, and that—"The said mortgage may, at the option of the parties of the second part, be immediately foreclosed by the sale of the said premises as therein provided."The note for $4,500 was due in 15 years, and bore interest at 2 per cent. per year, and was conditioned that it should become void on the death of both payees. The agreement also provided that the note and mortgage should become null and void upon the death of the father and mother, and that, upon satisfactory proof of such deaths, they should be discharged of record by the proper officer. As a matter of fact, the land conveyed to this defendant, instead of being of the value of $11,500, was of the actual and marketable value of at least $20,000, and was, at the time of the commencement of this action, of a value greatly in excess of $20,000. The reason why this land was treated as of a value so much below its real value was to give to the defendant Alfred S. Hegge more than an equal share of the property of his father, and this solely because of the agreement which he was entering into to care for his said father and mother. The father died soon after July 3, 1912. From the time when the agreement was entered into and possession of said land taken by the defendant, defendant failed and neglected, at all times, to comply with any of the terms and conditions of said note, mortgage, and agreement. He failed and neglected to maintain and support his mother as he had covenanted to do in said agreement. He has, at no time, contributed in any manner or form to her support and maintenance. He has failed to furnish necessary food and clothing, or any clothing for her. He has not at any time furnished or caused to be furnished any...