Kunz v. Kunz, 51155

• Decision Date: 10 December 1963
• Docket Number: No. 51155,51155
• Parties: Mary M. KUNZ, Appellant, v. Charles A. KUNZ, Appellee.
• Court: Iowa Supreme Court

Page 226

125 N.W.2d 226

255 Iowa 1087

Mary M. KUNZ, Appellant, v. Charles A. KUNZ, Appellee.

No. 51155.

Supreme Court of Iowa.

Dec. 10, 1963.

McMahon & Cassel, Algona, for appellant.

Hutchison, Hutchison & Andreasen, Algona, for appellee.

LARSON, Justice.

This suit to set aside a quitclaim deed which purported to convey plaintiff's undivided one-third interest in approximately 600 acres of farm land located in Nevada Township, Palo Alto County, Iowa, but reserving to herself a life interest therein, was brought by Mary M. Kunz, a widow, against her grantee son, Charles A. Kunz, on the grounds that at the time of its execution there was a confidential or fiduciary relationship between the parties and that the deed was executed as a result of undue influence, fraud, and duress on the part of defendant, and that there was no proper delivery of the deed to him. Defendant's answer denied the alleged relationship, the undue influence, the failure to deliver, and the failure of consideration. The trial court held the evidence insufficient to establish a confidential relationship or that the deed was not properly executed and delivered, or that it was procured by fraud, duress, or undue influence, and dismissed plaintiff's petition. She appeals.

I. Perhaps the principal question presented by this appeal is whether at the time the deed was executed on September 15, 1960, a confidential or fiduciary relationship existed between the plaintiff and defendant in which he was the dominant person and she the subservient one. Most of plaintiff's testimony came from herself and six of her children, all of whom were interested parties. Defendant's testimony was given by himself, his wife, friendly neighbors, a former Supreme Court judge, a doctor, and some relatives who were not directly interested. Although our review is de novo, we should give weight to the trial court's findings, for it saw and heard these witnesses.

II. Plaintiff, of course, had the burden to show by clear proof the existence of the confidential relationship claimed by her. Groves v. Groves, 248 Iowa 682, 82 N.W.2d 124; Luse v. Grenko, 251 Iowa 211, 100 N.W.20 170; Barber v. Powell, 248 Iowa 785, 792, 82 N.W.2d 665, 669. The law concerning confidential relationships and their effect upon the transactions between the parties to them, we have often said, is too well settled to require much discussion. It is not the law but the facts that trouble the courts in such cases. Foster v. Foster, 223 Iowa 455, 459, 273 N.W. 165; Thorne v. Reiser, 245 Iowa 123, 129, 60 N.W.2d 784, 788 and citations. As is pointed out in the latter, case, the relationship exists 'when one has gained the confidence of the other and purports to act or advise with the other's interest in mind.' Restatement of the Law of Trusts, § 2(b), page 8; Popejoy v. Eastburn, 241 Iowa 747, 757, 41 N.W.2d 764; 37 C.J.S. Fraud § 2c(2), page 213, note 1; 17 C.J.S. Contracts § 132.

To determine for ourselves whether the evidence clearly shows such a relationship existed at the time the deed was executed, we turn to the much-too-lengthy record. Charles J. Kunz, plaintiff's husband, whom we shall refer to as C. J. Kunz herein, after an extended illness, died on August 27, 1960, and was buried August 30th. On September 2nd plaintiff and defendant called at the office of Attorney Guy L. Carmichael in Emmetsburg, who had done work for C. J. Kunz and had drawn decedent's last will and testament. The will was taken to the county clerk's office where it was filed and read. At that time the defendant expressed his dissatisfaction with its terms, which in substance left to the widow a one-third share in the farm and divided the balance of the land in equal shares to his seven children. By virtue of joint ownership, she also received some $20,000 in cash and bonds. Defendant said he expected a special bequest from his father in view of the fact that he alone had remained at home and had assisted in the accumulation of the property owned by his parents. Plaintiff's witness, Mr. Carmichael, explained the bequest and her interest in the estate of her deceased husband. He explained that property was hers and that she could do what she wanted to with it. Mr. Carmichael testified the plaintiff, Mrs. Kunz, then voluntarily said: 'Well, Charles * * * You are dissatisfied. I can make up something to you out of my share of the property * * * I can give you something.' He further testified that defendant, prior to that time, had not suggested that his mother do something for him out of her share. He did not recall advising the widow that she could deed or will her share, but said he may have so advised her.

Apparently this turn of events so upset defendant that he became ill and he complained about the will to two of his sisters. While the record is silent as to any further discussion between plaintiff and defendant as to whether or not she would help her son, it seems reasonable to believe that she did in some way give him the impression that she would do so. At any rate on the morning of September 15th there was a conversation between them at the breakfast table. Plaintiff, being aware of the possibility of Charles filing a claim in his father's estate for extra services rendered, asked him if she gave him her share if he would file such a claim. He said he would not, but wanted a written and not a verbal promise, for he claimed his father had promised him such aid but did not keep it. A discussion followed as to how this could be done and Charles suggested they consult Mr. L. E. Linnan, an attorney at Algona who had been on the Supreme Court and would know what could be done. The plaintiff asked defendant to call Mr. Linnan and make an appointment, which he did.

That afternoon at about 1:30 the parties, with defendant's wife Millie, called at Linnan's office in Algona, Iowa. Mr. Linnan was advised of C. J. Kunz's death and of the reading of the will, a copy of which Charles handed to him. Linnan testified Mary Kunz, the plaintiff, in substance told him she and her husband had promised Charles they would held him so he could buy the home farm, or another one, but the will failed to make any provision for such aid. She told him that Charles had stayed with them and had helped them pay off the farm mortgage and that she wanted to compensate him somehow. She asked if she could turn over her interest in the farm to Charles. She also pointed to the fact that during the past two or more years Charles had helped take care of the ailing. C. J. Kunz when she could not do so alone, and that he should be paid for that service.

In this connection it is interesting to note that C. J. Kunz had given his son Alvin a small farm some years before, although Alvin had spent little or no time helping his father acquire the home farm, and had never lived on it.

Mr. Linnan advised Mrs. Kunz that she could turn over her interest in the farm to Charles, and testified that she said she wanted to do it. After examining the will, Linnan expressed the opinion it could not be upset and doubted that Charles could successfully pursue his entire claim against the estate of C. J. Kunz, although he could try. Plaintiff then asked Charles if she transferred her interest in the farm to him, whether he would file the claim, and he said he would not. In the further discussion Charles and his wife agreed that Mary Kunz could live and have her home with them for the rest of her life without charge. Mr. Linnan then prepared a quitclaim deed and an affidavit explaining the reasons for its execution. He stated in doing so he was acting as attorney for Mary Kunz. He further denied he ever acted as attorney for Charles, although he stated the bill for his services on this date was directed to the children of C. J. Kunz and was paid by Charles.

After these instruments were prepared, they were read to Mary Kunz, and Linnan testified she said that was just what she wanted to do. Although plaintiff claims otherwise, maintaining that she did not know what was being done, Linnan insisted that Mary Kunz did most of the talking and that from her reactions and conversation he was sure she heard and understood every word he said to her and knew what she was doing. He further testified that from his contact with and obeservation of Mary M. Kunz, whom he had not known before, she was in his opinion a composed elderly lady, not emotionally upset or agitated at the time, and knew what she wanted to do and what she wanted him to do.

After the quitclaim deed and the affidavit, Exhibits 3 and 4, involved herein, were read to her, she signed them, and Linnan took her acknowledgment and said he gave them to defendant. There is some conflict in the testimony as to whether Linnan gave them to Charles, or back to plaintiff who then gave them to defendant, but we think that is not vital here for it is clear they were actually handed to defendant by plaintiff or by Linnan acting under her direction at that time. The deed was recorded by defendant on the 28th of February, 1961.

III. Of course the burden to prove nondelivery of a recorded deed rests on the party so alleging, and the evidence thereof must be clear and satisfactory or, as we have sometimes said, clear, satisfactory and convincing. Byers v. Byers, 242 Iowa 391, 411, 46 N.W.2d 800, 811, and citations. Circumstances may overcome the presumption of delivery. Jeppesen v. Jeppesen, 249 Iowa 702, 709, 88 N.W.2d 633. Unless we find herein clear and satisfactory proof of facts to the contrary, it must be concluded that there was a proper delivery of this deed. Arndt v. Lapel, 214 Iowa 594, 243 N.W. 605. Obviously, the conveyance was of plaintiff's interest in that land.

Plaintiff recalls she was given a dollar by defendant, although she claims she did not know what it meant at the time. Exhibit 3, the quitclaim deed involved, expressed the consideration as 'ONE DOLLAR and other good and valuable...