Jackson v. Jackson
| Decision Date | 30 September 1913 |
| Citation | 135 P. 201,67 Or. 44 |
| Parties | JACKSON v. JACKSON et al. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Marion County; William Galloway, Judge.
Suit by Clarence Jackson against George W. Jackson and others. Judgment for plaintiff, and certain defendants appeal. Affirmed.
This is a suit in equity to determine an adverse claim to the north half of the donation claim of Andrew Jackson and his wife Mary Jackson, situated in Clackamas county, Or., and more particularly described in the complaint, containing 160 acres, and to require the defendants the Bank of Woodburn and J.M. Poorman to deliver to the plaintiff the deed of conveyance in their possession, claimed to belong to the plaintiff, etc. The court below rendered a decree for the plaintiff.
Carson & Brown, of Salem, for appellants.
S.T Richardson, of Salem, and Grant B. Dimick, of Oregon City for respondent.
George G. Bingham, of Salem, for defendants Bank of Woodburn and Poorman.
RAMSEY, J. (after stating the facts as above).
This is a suit in equity to determine an adverse claim to the north half of the donation land claim of Andrew Jackson and Mary Jackson, in Clackamas county, Or., containing 160 acres, and to require the defendants to set forth their adverse claim to said real property, and to require the bank defendant and its cashier, J.M. Poorman, to deliver to the plaintiff a deed to said premises in their possession, and for general relief. The Bank of Woodburn and J.M. Poorman, defendants, did not appeal.
On the 23d day of December, 1908, and for many years prior to that date, Mary Jackson was the owner in fee of 160 acres of land above described. She was the widow of Andrew Jackson deceased. Her husband, Andrew Jackson, died in April, 1874. Mary Jackson died on April 24, 1911. The plaintiff and most of the defendants are heirs of said Mary Jackson.
The plaintiff on the 23d day of December, 1908, and for about 20 years prior to that date, resided with said Mary Jackson in her house on said premises and, at her request, took care of and supported her, and received the income of said land and paid the taxes thereon. Only about 50 acres of said land was in cultivation, and, according to the evidence of one of the defendants, said land was worth $10,000. The improvements thereon were very poor on December 23, 1908. Mary Jackson died intestate.
On the 23d day of December, 1908, said Mary Jackson made and executed to the plaintiff, for the expressed consideration of $2,000, a good and sufficient warranty deed, purporting to convey to the plaintiff and his heirs in fee the real property above described. A copy of said deed is set forth in the complaint. Said deed was subscribed and sealed by said Mary Jackson, and two witnesses attested the same, and she acknowledged said deed before J.W. Hobart, a notary public, and he appended thereto his certificate of acknowledgment in due form under seal. Said deed was on its face, in all respects, a perfect deed of conveyance and contained no conditions.
Mary Jackson was at the time that she made said deed 85 years old but the undisputed evidence shows that she was in the full possession of her mental powers and in good condition physically for one of her years. There is no claim that she was not competent to make a valid deed or that the execution of said deed was obtained by fraud or undue influence. Said deed was witnessed by J.W. Hobart and Mrs. F.J. Skelton. Another paper and a lease executed by Mary Jackson on the day she made said deed and referred to below were attested by the same persons. Said deed and said other papers are dated December 23, 1908. Each of them was written by J.W. Hobart, notary public, for Mary Jackson, who duly executed each of them. At the time said deed was executed, said Mary Jackson executed also a letter of instructions, of which the following is a copy, to wit:
After said deed was so executed on said 23d day of December, 1908, Mary Jackson handed said deed to the grantee therein, the plaintiff, and also said paper set out, supra, and instructed him to carry said deed and said letter of instructions to J.M. Poorman, cashier of the Woodburn Bank, and deliver them to him, and the plaintiff delivered said deed and said letter to said J.M. Poorman as directed. J.M. Poorman received said letter and said deed from the plaintiff and retained said deed in his possession until the evidence in this case was taken, and then delivered it to the reporter, and it is plaintiff's Exhibit No. 1 of the evidence. After said deed was made as stated, supra, but about the same time, the plaintiff's wife consulted the notary, J.W. Hobart, privately concerning said deed and appeared not to be fully satisfied with it because she thought that, if the plaintiff should die before the death of Mary Jackson, she would be badly situated with reference to the land. For the purpose of satisfying the plaintiff's wife, and not as a part of the business of making the deed, and as an after consideration, Mr. Hobart wrote a lease of said premises to the plaintiff for a term of ten years.
J.W. Hobart testified that, before writing said deed, he talked the matter over with Mary Jackson, and that she told him what she wanted to do, and that she wanted the plaintiff to have the land described in the deed and wanted him to pay the sums mentioned in the letter to J.M. Poorman. She told Mr. Hobart that she wanted to place the land in such a condition that she would have a home during her life, and at the same time she wanted to place it in such a shape that her son Clarence, the plaintiff, could go ahead and spend money in improvements, so that he could have assurance that he would in after years reap the benefits of it himself. She said that the improvements were very poor and needed to be fixed up, and that it was nothing more than right that he should have assurance in regard to the matter. She told Mr. Hobart that she did not want to make a will, because in that case the plaintiff would have no assurance, and that the will would not be operative until it should be probated. Mr. Hobart says that he told her that there were two ways in which she might effect what she desired. One was to give the deed to him and let it be recorded and take a life lease, or she could make a deed to him and place it in the hands of some disinterested person, so that it could not be recorded, and be kept for safe-keeping, and then he could go ahead with the improvements with some assurance, and after her death the deed could be recorded. She spoke of not wanting to make the matter public and gave her reason therefor. She then said that she wanted to make a provision in regard to the payment of certain sums to other children by the plaintiff and stated her reasons in detail.
Mr. Hobart prepared the deed and the letter of instructions to Mr. Poorman, at the request of Mrs. Jackson, and read them to her, and told her that he wanted her to understand distinctly that after she had signed the deed and the letter of instructions and they were delivered to Mr. Poorman she could not get them back unless Clarence should consent, and that Clarence could not get them without her consent, and she said, "That is all right; that is just the way I want it;" and she signed the papers and said, "She didn't want it any other way; it just suited her." Mr. Hobart says that after the deed was executed she handed it to the plaintiff, and handed him also the letter of instructions. Mr. Hobart says that the lease had nothing to do with the making of the deed, and that it was a transaction of itself.
Mrs. F.J. Skelton, a witness to the deed and the other papers, was present when Mr. Hobart read them to Mary Jackson and when he told her that, if she signed them, she would never be able to get them back, and she says (that was, Mrs. Jackson said), "She didn't want them back."
There was evidence showing that the plaintiff had lived with his mother and had taken care of her for many years. There was evidence also tending to prove that, when Andrew Jackson died 39 years ago, there was some sort of agreement among the older children and their mother that the older children should pay their father's indebtedness, amounting to about $500, and that their mother would not dispose of the land but that it should be divided among the children at her death. Geo. W. Jackson and the plaintiff say that they never knew of such an agreement. If there was such an agreement, it probably had reference to the lands of which their father died seised and not to their mother's land. The heirs still have 40 acres of land that belonged to their father's estate. Said alleged contract was not in writing.
The counsel for the defendants claim that the deed, the letter of instructions to...
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