Lee v. Lee
| Decision Date | 07 May 1940 |
| Docket Number | 6664 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Where a deed purports to grant and convey real estate the law presumes it was the intent of the grantor to pass a fee-simple title, unless it appears from the grant that a lesser estate was intended. Section 5527, Comp.Laws 1913 construed.
2. In determining incapacity of a grantor, such as to render his deed invalid, the court must be satisfied that the grantor was not in a situation to transact that particular business rationally. On the one hand, it is not necessary to show that he was capable of doing all kinds of business with judgment and discretion; nor, on the other hand, to show that he was wholly deprived of reason so as to be incapable of doing the most familiar and trifling work. His deed would be void if his mind and memory were in such a situation at the time of executing the deed as to render him wholly incompetent to judge of his rights and interests in relation to that transaction.
3. The capacity to execute a deed is the capacity at the time the deed was made.
4. Before a conveyance of real property will be set aside as having been given under duress and fraud, the proof must be clear, specific, and satisfactory. Anderson v. Anderson et al., 17 N.D. 275, 115 N.W. 836, followed.
5. The mere fact that a parent deeds property to a child does not of itself raise a presumption of undue influence; nor is there any presumption of undue influence or fraud merely from the fact that some children are favored to the exclusion of others.
Appeal from District Court, Cass County; M. J. Englert, Judge.
Action by Tobias Lee, as administrator of the estate of Margaret Lee, deceased, and others against George Lee and others to set aside two deeds executed and delivered by Margaret Lee deceased, about seven months prior to her death, wherein certain of the defendants filed a cross-complaint. From a judgment in favor of the defendants, the plaintiffs appeal.
Judgment affirmed.
Burnett, Bergesen & Haakenstad, for appellants.
The practice of an attorney testifying in behalf of his client is not to be commended, and where it has received judicial attention it has received scant approval. Jacobs v. Weissinger, 211 Mich. 47, 178 N.W. 65; 70 C.J. 176.
Contracts between parents and children will be carefully watched by courts of equity, and will be set aside where the stronger mind has induced it to be made, unless the bona fides of the transaction are shown. Brummond v. Krause, 8 N.D. 573, 80 N.W. 686; Fjone v. Fjone, 16 N.D. 100, 112 N.W. 70; Mann v. Prouty, 37 N.D. 474, 164 N.W. 139; Doyle v. Doyle, 52 N.D. 380, 202 N.W. 860.
Fuller & Powers, for respondents.
Since fraud is never presumed there must be sufficient proof of fraudulent intent to overcome such presumption. Bank of Osceola v. Potter, 49 S.D. 619, 208 N.W. 170; Jasper v. Hazen, 4 N.D. 1, 51 N.W. 583.
In order to destroy the recitals in a deed or other contract the proof must be clear, strong and convincing and of such a character as to leave in the mind of the chancellor no hesitation or substantial doubt. Smith v. Jenson, 16 N.D. 408, 114 N.W. 306; McGuin v. Lee, 10 N.D. 160, 86 N.W. 714; Wells v. Geyer, 12 N.D. 316, 90 N.W. 289.
The presumption is that a deed is valid and binding and this presumption will not be overcome by barely preponderating circumstances. Anderson v. Anderson, 17 N.D. 275, 115 N.W. 836.
The test of whether a person is competent to make a deed is that he should be qualified to do that particular kind of business rationally. Mann v. Prouty, 37 N.D. 474, 164 N.W. 139; Nelson v. Thompson, 16 N.D. 295, 12 N.W. 1058.
On a trial de novo judgment of the trial court upon the facts must have weight and influence with the reviewing courts especially when based upon the testimony of witnesses who appeared in person before the trial court. Bingenheimer Merc. Co. v. Sack, 50 N.D. 381, 145 N.W. 969; Williston v. Ludowese, 53 N.D. 797, 208 N.W. 82.
The undue influence exerted to procure the execution of a deed or bequest, or devise by will, must amount to fraud or coercion. Ejone v. Fjone, 16 N.D. 100, 112 N.W. 70.
This is an action to set aside two deeds executed and delivered by Margaret Lee about seven months prior to her death.
This land had been owned by Thor Lee. Margaret Lee was his wife, and the parties are their children. On August 28, 1931, Thor Lee and his wife deeded to the wife the northwest quarter of section 3 and the northeast quarter of section 4 in township 136, range 51, in Richland county. The deed was acknowledged, and was recorded in the office of the Register of Deeds on August 29, 1933. This deed, Exhibit A, a warranty deed, purports to "grant, bargain, sell and convey" unto Margaret Lee, "her heirs and assigns, forever," the land involved herein "to have and to hold the same;" and covenants that Thor Lee was "well seised in fee," and had "good right to sell and convey the same;" that the land was free from all encumbrances, and the grantors would warrant and defend the land "against all persons lawfully claiming or to claim the whole or any part thereof."
Thor Lee died on September 9, 1933. On November 22, 1934, Margaret Lee conveyed the land in section 3 to George Lee, and the land in section 4 to Josephine. The deeds, Exhibits B. and C., are in the same form and have the same covenants as Exhibit A. They were acknowledged on November 22, 1934, and recorded on June 5, 1935.
Margaret Lee died on June 14, 1935. Tobias Lee was appointed administrator of her estate, and with five of his brothers and sisters, brings this action, charging: that, despite the language of his deed, Thor Lee intended to vest only a life estate in his wife, and upon her death the land was to be divided equally among the children; that George Lee and Josephine Lee obtained their deeds by fraud and undue influence at a time when their mother was very ill and totally unable to know and understand what she was doing; that the grantees gave no consideration whatever for the land; that they have a secret agreement with their sisters, Julia and Myrtle, by which the latter were "to participate in the benefits to be derived from the said transfer of said property."
The defendants Julia and Myrtle made no appearance. The remaining defendants deny the main allegations of the complaint. In a counterclaim, they ask that they be adjudged the owners of the land and have the right to its possession, and that none of the plaintiffs has any estate or interest therein.
The trial court found that the deed to Margaret Lee conveyed title to her in fee simple; that there was no agreement or understanding that she should have merely a life estate; that Margaret Lee "was in good health of both mind and body and capable of conducting her affairs," and "remained in good health and in a condition to conduct her affairs until sometime in the month of May, 1935 . . .; that the purport and effect of the deeds was explained to and understood by the said Margaret Lee and that said deeds were prepared and executed to accomplish the specified desires of said Margaret Lee as expressed to her . . . attorney."
The court therefore held: that George Lee was the owner in fee simple of the land in section 3, and Josephine Lee of the land in section 4, each entitled to the possession of the land owned by him; and none of the other parties to the action had any "estate or interest in or lien or encumbrance upon the real property described in the complaint herein."
Judgment was ordered in conformity with these findings and duly entered. The plaintiffs appeal from the judgment and demand a trial de novo.
The issues involve the validity of the deed to Margaret Lee, Exhibit A. The witnesses to this deed are Mrs. Betsey Lee, one of the plaintiffs, and the defendant, George Lee. Neither witness testifies to any statement by the father that the mother was to get a life estate only. One Rost, an employee in a bank, made out the deed. He came to the house, and the deed was signed by the father and mother. The mother wanted the deed put on record and wrote the letter accompanying the deed, when it was sent to Wahpeton for record, though George mailed the letter for her. Betsey Lee says her mother and Mr. Rost were in the father's bedroom at the time the deed was signed, and she and George Lee were in the dining room. Plaintiff Tobias Lee was with George when arrangements were made with Rost for the latter to attend to the execution of this deed, but Tobias claims he knew nothing of the contents.
There is no testimony showing the father's ignorance of the contents of Exhibit A., or showing he did not know what he was doing when he deeded the property to his wife, or that the deed is other than he intended. There is some testimony regarding his ability to read English or to sign his name. There is no question raised as to execution or delivery of the deed, and Mr. Rost was not called as a witness.
Exhibit A. purports to "grant" and convey the property to the mother. Such "grant" is "conclusive against the grantor and every one subsequently claiming under him, except a purchaser or encumbrancer, etc." Comp. Laws 1913, § 5522.
And "a fee simple title is presumed to be intended to pass by a grant of real property unless it appears grant of real property unless it appears from the grant that a lesser estate was intended." Comp....
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