Knock v. Knock

• Decision Date: 28 March 1963
• Docket Number: 10008,No. 10008,R,A,No. 10006,Nos. 10006,10006,s. 10006
• Citation: 80 S.D. 159,120 N.W.2d 572
• Parties: Dick H. KNOCK, Plaintiff and Appellant Inespondent in, v. Henry H. KNOCK, Tebbo H. H. Knock, Tillie Klinghagen, Harven Brass, Caroline Abbas, Etta Straatmeyer, Defendants and Respondents inppellants in.
• Court: South Dakota Supreme Court

Page 572

120 N.W.2d 572

80 S.D. 159

Dick H. KNOCK, Plaintiff and Appellant In No. 10006 Respondent in No. 10008, v. Henry H. KNOCK, Tebbo H. H. Knock, Tillie Klinghagen, Harven Brass, Caroline Abbas, Etta Straatmeyer Defendants and Respondents in No. 10006 Appellants in No. 10008.

Nos. 10006, 10008.

Supreme Court of South Dakota.

March 28, 1963.

Willy, Pruitt & Matthews, Sioux Falls, for Dick H. Knock.

Samuel W. Masten, Canton, for Henry H. Knock and others.

ROBERTS, Judge.

This is an action brought by plaintiff to set aside a quitclaim deed to the Northeast Quarter of Section 5 and the West Half of Section 4, Township 98, Range 51, Lincoln County. The deed reserving in grantor a life estate was signed May 20, 1957 and recorded September 19, 1957. Defendants are the brothers, sister, nephew and nieces of the plaintiff and are the grantees named in the deed. The amended complaint sets out two causes of action. The first alleges that grantor at the time of the execution of the deed was unable to hear or read or to communicate except by lip reading in the German language and answering by nodding or shaking his head and that defendants taking advantage of his inability induced plaintiff to sign the deed. The second cause of action repeats factual allegations of the first and alleges that plaintiff indicated to the defendants that he wanted 'to do something with his property so that no one could take it away from him' and did not intend or desire to sign an instrument conveying title to his property. After hearing of testimony the court entered findings and judgment decreeing that defendants hold title to the property in trust for the use and benefit of the plaintiff during his lifetime and that upon his death the property be distributed according to the laws of succession. From the judgment entered plaintiff appeals and defendants feeling aggrieved by the decision of the court have also perfected an appeal.

Plaintiff, his parents, a brother and a sister resided on a farm near Lennox, South Dakota. On December 21, 1948, the father conveyed the northwest quarter of the premises above described referred to in the record as the 'home place' to plaintiff and conveyed the northwest quarter thereof to Herman and Anna Knock the aforementioned brother and sister. It is conceded that Herman succeeded to the interest of the sister in this quarter section. Plaintiff and his brother Herman executed wills in which each named the other to inherit his property. When Herman died on May 1, 1957, title to the northwest quarter of the tract in question vested in plaintiff. He acquired title to the remaining quarter section by purchase.

Plaintiff was 55 years of age at the time of the execution of the deed in May, 1957. He was deaf and unable to read, but could lip read in the German language. He conducted a farming operation which was substantial, handled his own business and had a checking account. After the death of his brother Herman plaintiff asked his sister Tillie Klinghagen to contact Carl K. Anderson, an attorney practicing in Canton, who had for many years known and represented the Knocks in various matters. He had prepared the will for Herman which named plaintiff as executor. Mr. Anderson called as a witness by the plaintiff testified that on two separate occasions prior to the signing of the deed plaintiff through Mrs. Klinghagen interpreting consulted with him concerning disposition of his property; that Mrs. Klinghagen said that her brother wished to execute a deed conveying his land to members of his family; that witness explained that plaintiff could leave his property to members of his family either by will or deed; that he advised the plaintiff to reserve a life estate if he executed a deed that he did not know whether the interpretation by Mrs. Klinghagen was correct or not; that he could understand plaintiff only when he shook his head yes or no; that defendants to this action with the exception of Mrs. Abbas were present in his office on May 20, 1957, when the deed here in controversy was signed; and that plaintiff named as executor in the will of his brother Herman at that time also signed a petition for probate of the will and later qualified and acted as executor of the estate.

In September 1957, nearly four months after the signing of the deed, Mr. Anderson through Mrs. Klinghagen explained to plaintiff that it was necessary to file a tax return and pay a federal gift tax. Plaintiff thereafter signed a return which the attorney prepared and by check paid the gift tax in the amount of $725.59. Nothing further transpired concerning the transaction of May 20, 1957, until some time in the spring of 1960 when ready to leave the hospital after treatment for an injury plaintiff informed his family that he would be cared for by a Mrs. Tillie Bultena. The evidence tends to sustain the finding of the trial court 'that the arrival of Tillie Bultena on the scene caused a change in the close relationship that had existed' between the plaintiff and his family. Mrs. Bultena sought to negotiate a sale of a part of plaintiff's land to her son and after inquiry learned that plaintiff could not convey an absolute title. The present action shortly thereafter was commenced.

No claim is made that plaintiff did not have capacity to dispose of his property and there is no evidence that defendants were guilty of any undue influence, fraud or misrepresentation in the preparation, execution and delivery of the deed. The trial court did not decide the issues generally in favor of either the plaintiff or defendants. The court's views of the equities involved are indicated in his memorandum opinion:

'I am satisfied from the evidence that Carl Anderson explained the deed fully, and the consequences of signing such deed. I am also satisfied that Mrs. Klinghagen faithfully interpreted his words as best she could, but under some handicap because she was translating legal terms which were strange to her from English into German, which of course then had to be lip read for the most part by the plaintiff. While plaintiff now denies it, I am convinced he knew he was signing some sort of a deed to his property. While he was a deaf mute, he was no moron; he ran his own farm; handled his own business affairs; and took care of his own checking account. However, there is only one request that the plaintiff ever made to his sister, Mrs. Klinghagen, or to the attorney in regard to this property, and I believe the exact nature of this request is most important here. The plaintiff originally requested that he wanted 'to do something with his property so no one could take it away from him.' Mrs. Klinghagen and Mr. Anderson both testified as to this request. They never testified as to any other. The mechanics of carrying out this request was pretty much left to Mrs. Klinghagen and Mr. Anderson, and this deed resulted. * * * Due to the plaintiff's condition, the Court owes a particular duty to seek out his true intent and be governed by it. I am satisfied that the plaintiff had no understanding of a trust and had probably never heard the word, but a fair interpretation of his request would indicate that a trust was what he was seeking. He made no statement that would indicate he wanted to give his property away, and he made no statement that would indicate he wanted to make a testamentary disposition by deed.'

The burden was on plaintiff seeking to set aside the deed to prove some circumstance such as fraud, undue influence, mistake or mental incapacity to show that the conveyance was not the free act of the grantor. In re Thompson's Estate, 48 S.D 474, 205 N.W. 47; Davies v. Toms, 75 S.D. 273, 63 N.W.2d 406.

We are not in accord with the...