Johnson v. Johnson

Decision Date18 March 1957
Docket NumberNo. 7574,7574
Citation85 N.W.2d 211
PartiesRosgard JOHNSON, as administrator of the estate of Ole Johnson, deceased, and individually, Jorgina Johnson, Andor Johnson, Melvin Johnson, Leo Johnson, Roy Johnson, Delia Mortenson, Winfred Johnson, Cecelia Opdahl, Franklin Johnson, and Clifford Johnson, Plaintiffs and Appellants, v. Victor JOHNSON, Defendant and Respondent.
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. The capacity of a grantor to execute a deed is his capacity at the time that the deed is made and executed.

2. Upon the question of incapacity to render a deed invalid, the court must be satisfied that the grantor was not in a situation to transact that particular business rationally.

3. Before a conveyance will be set aside because of the grantor's mental incompetency it must appear that the grantor at the time of the execution was so weak mentally as not to be able to comprehend the nature and effect of the transaction involved. Where the grantor, although of advanced age and somewhat impaired in health, comprehended the nature and effect of the transaction, the deed will not be set aside.

4. In order to render a deed voidable on the ground of undue influence and subject it to cancellation it must appear that improper influence was exercised over the grantor to such an extent as to destroy his free agency or his voluntary action by substituting for his will the will of another.

5. Whatever form undue influence may take, three factors are always involved: 1. A person who can be influenced; 2. The fact of improper influence exerted; and 3. Submission to the overmastering effect of such unlawful conduct. All three must be present.

6. Affection, confidence and gratitude of a parent to a child, which inspire a gift, are natural and lawful influences and will not render such gift voidable unless influence has been used so as to confuse the judgment and control the will of the donor.

7. Where the evidence is such that the execution of a deed by a father to a son is as consistent with influence born of love, affection and gratitude towards the son, as with undue influence procured by overpowering the will of the grantor, the deed will not be set aside on the ground of undue influence.

8. Where the ownership of property is absolute and subject to the dominion of a single person he may use or dispose of it according to his own pleasure, subject only to general laws. Section 47-0202, NDRC 1943. Absolute ownership implies the right of arbitrary disposition of property by a capable and uninfluenced person.

9. The mere fact that a parent deeds property to a child does not of itself raise a presumption of undue influence. Nor is there a presumption of undue influence arising from the fact that one child is favored to the exclusion of others, although the beneficiary is the advisor of the parent, and has control and management of his affairs. This is true even though the parent is aged or aged and infirm.

10. Where a confidential relationship exists between a parent and child, grantor and grantee in a deed, if the circumstances are such that the grantor is likely to be subjected to the will of the grantee, the burden is cast upon the grantee to show that the conveyance was made freely and voluntarily with full knowledge on the part of the grantor of its character and effect. In this case it is held for reasons set out in the opinion that the defendant has sustained that burden.

A. S. Benson, Bottineau, Duffy & Haugland, Devils Lake, for appellants.

Halvor L. Halvorson, Jr., and Jonathan C. Eaton, Jr., Minot, for respondent.


This is an action to quiet title to the following described real property in Bottineau County, North Dakota, to wit:

'The South Half of the Southeast Quarter and the Northwest Quarter of the Southeast Quarter of Section Seven, Section Seventeen, the West Half of Section Sixteen, the Northeast Quarter, the Northeast Quarter of the Southeast Quarter, the East Half of the Northwest Quarter, less 23.21 acres conveyed to the United States, and the South Half of the Southeast Quarter, less 32.58 acres conveyed to the United States, of Section Nineteen, and the Southwest Quarter, and West Half of the Northwest Quarter, the Southeast Quarter of the North West Quarter, the South west Quarter of the Northeast Quarter and the West Half of the Southeast Quarter of Section Twenty, all in Township One Hundred Sixty-one North, of Range Seventy-eight West of the 5th. Principal Meridian.'

The real purpose of the action is to cancel and set aside a warranty deed executed by Ole Johnson on September 4, 1951, to himself and to his son Victor Johnson, as joint tenants and not as tenants in common, with right of survivorship. Originally when this action was started it included the Northeast Quarter of the Northwest Quarter (NE 1/4 NW 1/4), the North Half of the Northeast Quarter (N 1/4 NE 1/4), and the Southeast Quarter of the Northeast Quarter (SE 1/4 NE 1/4) of Section 20, Township 161, North of Range 78. This real property had been purchased by the defendant from third parties. During the trial it was stipulated that this property was not to be involved in the determination of this action, and that the plaintiffs did not assert any title thereto.

The action was tried to the court without a jury. The plaintiffs attacked the validity of the deed of September 4, 1951, on two grounds: first, that the deceased, Ole Johnson, at the time of the execution of the deed was not competent and lacked the mental capacity to execute the same; second, that he executed the deed under the undue influence of his son, Victor Johnson.

The trial court in a comprehensive memorandum opinion analyzed the facts presented, found the deed to be valid, and ordered judgment for the defendant. The plaintiffs appeal from this judgment and demand a trial de novo.

In discussing the evidence presented at the trial, the court said:

'* * * The record has been searched in vain for any evidence of any actual fraud practiced upon the deceased by the defendant in procuring the deed, and while the deceased, Ole Johnson, may have been influenced to some extent by the defendant, the Court does not feel that it can be properly held to be undue influence as would warrant a Court in disturbing the transaction. There is nothing in the evidence in this case to indicate undue influence, that is, influence that is unrighteous, illegal, or designed to perpetrate a wrong, or of such character to amount to fraud or coercion, or that the grantor was overreached and deceived by any false representation or strategem or by coercion, physical or moral, or that the said Ole Johnson at the time of the execution thereof was so weak mentally as not to be able to comprehend the nature and effect of the transaction involved.'

The trial court found as ultimate facts:


'That the said Ole Johnson, grantor in said joint tenancy deed, at the time of the execution thereof, namely, September 4, 1951, was mentally competent to make and execute said deed, and that he fully knew and understood the meaning and effect of said deed and what was conveyed thereby, and was able to and did exercise his own free will in making said conveyance.


'That no undue influence or fraud was exercised by the defendant, Victor Johnson, over the said Ole Johnson, now deceased, in connection with the transaction regarding the inception or execution of said joint tenancy deed covering the above described property.'

In the case of Doyle v. Doyle, 52 N.D. 380, 389, 202 N.W. 860, 863, this court discusses the advantages of the trial court in considering the evidence as compared with the cold record from which we must arrive at our findings. In that case the court said:

'The case is here for a trial de novo under section 7846, C.L.1913, as amended (now Section 28-2732, NDRC 1943). This court must review the record here presented and find the facts for itself. On a trial de novo the findings of the trial court are not clothed with the same presumptions in their favor as in other cases. But, on the other hand, in such a case as this, we must take into consideration the fact that we have here but a cold and lifeless record. We are called upon to determine the mental capacity, the state of mind, the knowledge and intent of Ellen Doyle at the time she executed and delivered the deed. We have not the advantage of seeing her, of noting her demeanor, of hearing her voice; of the innumerable intangible indicia that are so valuable to a trial judge in determining questions of this character. The trial court had the advantage of all of these things, and, breathing the air of the trial, he was in an immeasurably better position to find the real facts in the case. Therefore, notwithstanding that the case is here for trial de novo, we must give some appreciable weight to the determination of the trial court.' See also Merchants' National Bank of Willow City v. Armstrong, 54 N.D. 35, 208 N.W. 847; Gunsch v. Gunsch, N.D., 67 N.W.2d 311.

We will now proceed to review the evidence to ascertain whether the deed is voidable because of incompetency of the grantor or undue influence to which he may have been subjected.

Ole Johnson, at the time of this death, was over 90 years old. He died June 24, 1954, two years and nearly ten months after the execution of the deed in question in this action. He was the father of twelve children, eleven of whom were originally made plaintiffs in this action. However, it appears that Delia Mortenson claims that she was made a party plaintiff without her consent. The attorneys for the plaintiffs moved, during the course of the trial, to withdraw her name as plaintiff in the action.

Ole Johnson was an early pioneer of Bottineau County. He was aggressive, and a man of positive character. He was public spirited and interested in public affairs. He had some fifty years previous to his death helped organize...

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