Hull v. Mitchell
| Decision Date | 07 April 1917 |
| Docket Number | 31010 |
| Citation | 162 N.W. 235,181 Iowa 51 |
| Parties | OLLIE E. HULL et al., Appellants, v. JOHN B. MITCHELL, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED SATURDAY, SEPTEMBER 29, 1917.
Appeal from Mahaska District Court.--K. E. WILLCOCKSON, Judge.
SUIT to set aside and cancel a conveyance resulted in the dismissal of the petition. Plaintiffs appeal.
Reversed.
Burrell & Devitt and S. V. Reynolds, for appellants.
D. W Hamilton and L. T. Shangle, for appellee.
Evaline Mitchell died February 6, 1913, at the age of 79 years. Her husband had departed this life on January 30, 1903. Eight children survive her, being the plaintiffs, defendant, and William, Llewellyn and Elmer Mitchell. Since suit was begun, Amy Timbrel has withdrawn therefrom. The decedent conveyed to the defendant, on January 2, 1913, 240 acres of land, described as the S. E. 1/4, the N. E. 1/4 of the S.W. 1/4 and the S. E. 1/4 of the N.W. 1/4, of Section 28, in Township 77 North, Range 16 West of the 5th P. M.
The sole issue raised by the pleadings is whether the execution of this deed was procured by the exercise of undue influence on the part of defendant. The consideration named in the deed was $ 18,000, but the land was fairly worth, according to five witnesses called by defendant, $ 150 per acre, while three witnesses called by plaintiffs estimated its value at from $ 175 to $ 200 per acre, and two others at $ 175 per acre. No security other than a promissory note was given for the payment of the consideration, and the note was in words and form as follows:
The last sentence was written, and all else printed, except the signature. It is to be noted that the interest rate is 4 per cent per annum, and interest due and unpaid to bear interest at the same rate; but the printed portion authorizing the payee to declare the note due 30 days after failure to pay interest matured, was stricken out, and also the attorney's fee clause. The defendant might then delay the payment of interest and principal for 15 years after the conveyance of the land, and the only provision for care and support left to the decedent after the transaction was the clause in the deed reserving to her "a home upon said premises the same as I have heretofore enjoyed since the death of my husband, without charge." Prior to his death, the husband is shown to have transacted all business for the family, buying all household supplies, even the wearing apparel of his wife and children. She seldom left the farm, and had never ridden on a railroad train. After the husband's death, she continued on the farm as before, and did not go to New Sharon and Oskaloosa, their trading points, more than half a dozen times during the 10 years prior to her death. Though left the 240 acres of land in controversy by her husband, she never leased it, but allowed her sons William and defendant to operate the same, without any agreement as to the income. After 2 or 3 years, defendant, according to his story, bought her chickens and cattle, but could not say how much or when he paid for them. He testified that her hogs and one horse died, leaving as her only personal property the horse "Old Kentucky," which survived her at the ripe age of 32 years; that all chickens and stock on the place during the 7 or 8 years before her death belonged to him and William; that he gave her what money she wanted; that she had $ 150 when taken sick, which she told him to get so as to pay those who helped care for her, but that he had used the money in doing so. Other evidence disclosed that she left only 15 cents in her pocketbook, and had repeatedly complained of not having been provided with money with which to buy clothing.
When Llewellyn Mitchell left the farm does not appear, but it was several years prior to decedent's death. Defendant was the youngest child, and helped in the house, had charge of all business transactions after his father's death, and "spent a good deal of time hunting, fiddling, dancing and trapping." The evidence tended to show that decedent was rational until shortly before her death, but without experience in business matters, and knew little concerning the values of property. She began failing in health when her husband died, and was taken with her last sickness in November, 1912. On December 11th, Dr. Childress found her "suffering a great deal of pain," and testified that He says further that "she got weaker physically of course, constantly, until she finally died." Dr. Phillips, her regular physician, began treating her November 13, 1912, and called frequently until her death. She had been afflicted with a varicose ulcer near the ankle. He testified that she was suffering from this and senile gangrene when he first called; that she suffered much pain nearly all the time, but more at night, and that, owing to her age and loss of sleep, she became worn out; that opiates were administered to relieve her from pain; that her circulation was bad and her arteries hardened on account of old age, and that she got worse gradually.
What we have said indicates the situation and the condition of the decedent January 2, 1913,--without business experience, weak of body, borne down by pain, and looking to the defendant, who had dominated her activities for years, for care and support. According to his sister Mrs. Momyer, decedent was entirely under the influence of William and defendant, and defendant had proposed to this sister, on December 25, 1912, that if she would help him buy the place for $ 40 an acre, he would divide with her, or if she could get decedent to sell for $ 40 an acre, he would pay her. Mrs. Crookham, another sister, testified that, on the day her mother died, she had said to defendant:
"'There is going to be trouble from this,' I said; 'you know a deed like this cannot stand, the shape ma was in; you know this place is worth $ 200 per acre;' and he said, 'I reckon I know it is worth $ 200 per acre,' I said, 'If you wanted this place you ought to have got her to deed this place to you while she was capable of making a deed;' and he said, 'I have been trying for ten years.'"
The defendant was asked whether he said to Mrs. Momyer that he would divide with her if she would get her mother to sell the land to him at $ 40 an acre, and he answered:
He admitted having a conversation with Mrs. Crookham, but swore that the farm was not worth to exceed $ 75 per acre; that he had not talked with his mother as to its value; but, on cross-examination, he was asked:
If defendant had been kind to his mother, he also had enjoyed with William the use of the farm without other consideration than providing for her meager wants, and that she did not think him entitled to any preference over the other children appears from her will, executed February 11 1912. That therein she should have denied Mrs. Momyer the benefit of her bounty on the specious ground that she had been remembered by her afflicted sister, to whom she had opened her home, but emphasizes her inability to measure claims on her bounty. In the will she directed: (1) the payment of debts, expenses of last sickness, burial, and setting her estate; (2) the release of all claims for rents against defendant and his brother William; (3) bequeathed to her daughter Jennie Momyer the sum of $ 200, saying that she gave no more because of this daughter's having received the estate of another daughter, deceased (Mae Mitchell); and (4) left the residue of the estate, share and share alike, to Llewellyn, Elmer, William and John (defendant), Ollie...
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