Kitchen v. Kitchen

• Decision Date: 04 January 1934
• Docket Number: 5343
• Court: Utah Supreme Court
• Parties: KITCHEN v. KITCHEN et al

28 P.2d 180

83 Utah 370

KITCHEN v. KITCHEN et al

No. 5343

Supreme Court of Utah

January 4, 1934

Appeal from District Court, Fourth District, Utah County; Le Roy H Cox, Judge.

Action by Sarah Frances Kitchen against Thomas L. Kitchen and others. From a judgment dismissing plaintiff's action plaintiff appeals.

REVERSED AND REMANDED, WITH DIRECTIONS TO REINSTATE CAUSE.

Christenson & Straw, of Provo, for appellant.

Martin M. Larsen, of Provo, for respondent.

MOFFAT J. STRAUP, C. J., and ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.

OPINION

MOFFAT, J.

The plaintiff's complaint in substance alleges: That Thomas L. Kitchen and Emma F. Riding are son and daughter, respectively, of the plaintiff, and Myrtle A. Kitchen is the wife of Thomas L. Kitchen. That the plaintiff is the mother of seven additional living children. The names and addresses are set out. That the plaintiff is over eighty years of age, physically infirm and in failing health due to her advancing years. That she has felt herself largely dependent upon her children for care, protection, and advice. That she has had little business experience, and is wholly unacquainted with property titles and legal forms of conveyances. That since the death of her husband, which occurred about the year 1919, plaintiff has resided upon, and in and through the probate proceedings in the matter of the estate of her deceased husband she became the owner of the home and ten acres of land with the water rights--the property involved in the action.

In the year 1924, a son of the plaintiff, L. R. Kitchen, and his family were living on the property with plaintiff. Thomas L. Kitchen, a brother of L. R. Kitchen and son of plaintiff, proposed that he and certain of his sisters purchase the interest of L. R. Kitchen in the estate of plaintiff after her death for the sum of $ 500; that L. R. Kitchen agreed with Thomas L. Kitchen that he would sell his interest in his mother's estate, and would then in no way participate in the estate after the death of his mother.

It is also alleged that the property referred to in the complaint, except the household furniture, was the only property possessed by plaintiff; that Thomas L. Kitchen advised the plaintiff of the agreement between him and L. R. Kitchen and that he (Thomas L. Kitchen) and certain other children of plaintiff had agreed to purchase the interest of L. R. Kitchen, and that, in order to fix the matter up so the purchasers would be protected, it was necessary for plaintiff to sign certain papers; that about August 5, 1924, Thomas L. Kitchen came to the home of plaintiff and represented to her that he had the papers prepared for her to sign. It is also alleged that, plaintiff believing that the papers she was requested to sign were papers that would protect Thomas L. Kitchen and the other children who had or were about to pay the $ 500 to L. R. Kitchen for his interest in the estate plaintiff would leave, and relying upon Thomas L. Kitchen, her son, in that respect, she signed the papers which she now is informed and believes was a deed to her home and the water rights; that, when plaintiff signed the papers, she did not know the contents of the papers, and did not understand the papers she signed was a deed to her home, but that she thought the papers signed were papers to protect the children, who paid the $ 500 to L. R. Kitchen, against any interest he might have by inheritance in plaintiff's property; that until about a year before the bringing of this action plaintiff was ignorant of the fact that she had signed a deed to her home and property, or that a deed had been recorded which purported to convey all of her property to Thomas L. Kitchen and Emma F. Riding.

Plaintiff further alleges that she received no consideration for her property, and it was at no time her intention or purpose to convey away by deed her property. Plaintiff claims to be impecunious and dependent upon charity unless her property be restored to her.

The relationship of the parties, the way the plaintiff became the owner of the property, the age, infirmities, of plaintiff, places of residence, the receiving and recording of the deed, are admitted. It is also admitted the defendants claim an interest in the property.

The case was tried to the court sitting without a jury. At the close of plaintiff's testimony, counsel for defendants interposed a motion for a nonsuit upon the ground that the evidence was insufficient to show the plaintiff was entitled to relief, and further that there was no evidence of any fraud, deceit, or misrepresentation practiced upon plaintiff by defendants or either of them. The motion was granted, and the action was dismissed. From the judgment of dismissal, the plaintiff and appellant prosecutes this appeal.

There is then but one question here for review. That question is: Do the admissions in the pleadings and the facts directly proved and every fair inference deducible from the facts establish sufficient proof to support plaintiff's case? If the question is answered in the affirmative, the judgment must be reversed; if in the negative, affirmed.

It is the duty of the court when a motion for a nonsuit is interposed, in passing upon the motion, to consider the facts well pleaded and admitted as established, and to assume as true all facts which could be properly found by a jury from the evidence, and in addition thereto give ...