Lee v. Lee, 6664.

• Decision Date: 07 May 1940
• Docket Number: No. 6664.,6664.
• Citation: 292 N.W. 124,70 N.D. 79
• Parties: LEE et al. v. LEE et al.
• Court: North Dakota Supreme Court

70 N.D. 79

292 N.W. 124

LEE et al.

v.LEE et al.

No. 6664.

Supreme Court of North Dakota.

May 7, 1940.

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, of Fargo, for appellants.

Fuller & Powers, of Fargo, for respondents.

BURR, Judge.

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 seized 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 counter-claim, 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.

[1] 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 incumbrancer,” etc. Sec. 5522, Comp.Laws 1913.

And “A fee simple title is presumed to be intended to pass by a grant of real property unless it appears from the grant that a lesser estate was intended.” Section 5527, Comp.Laws 1913.

Nothing in the grant indicates that a lesser estate was intended, and other than the deed, there is no evidence of the grantor's intent at the time the deed was executed. Clearly, the trial court was right in holding that Exhibit A. conveyed a fee-simple title to Margaret Lee, and we so find.

The issues involve the validity of Exhibits B. and C. also. The controversy in this respect rages around the capacity of Margaret Lee to execute the instruments, and whether they were obtained by either fraud or undue influence, or both.

[2][3][4] The test of capacity is laid down by this court several times. In Nelson et al. v. Thompson et al., 16 N.D. 295, 301, 112 N.W. 1058, 1060, this early rule deduced from Jackson v. King, 4 Cow., N.Y., 207, 15 Am.Dec. 354, 355, was adopted: 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-not, on the one hand, that he should be capable of doing all kinds of business with judgment and discretion, nor, on the other hand that he should be wholly deprived of reason, so as to be incapable of doing the most familiar and trifling work. That, if the 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, the deed would be void.

In Meyer et al. v. Russell, 55 N.D. 546, 214 N.W. 857, we say: “Impairment of faculties by disease or old age will not invalidate a deed, provided the grantor fully comprehended its meaning and effect, and was able to exercise his will in executing it.”

Again: “Before the court will set aside a conveyance on the ground of mental incompetency of the grantor, it is necessary to show that the grantor, at the time of the execution of the instrument, was so weak mentally as not to be able to comprehend and understand the nature and effect of the transaction involved.” Nordby v. Sagen, 64 N.D. 376, 252 N.W. 383.

[5] Old age alone does not affect competence, even though the mind may be weak and impaired compared with what it has been, and even though the capacity to transact general business may be lacking. This is the rule set forth in 16 Am.Juris. 486, and it is supported by the citation given therein-Delaplain et al v. Grubb et al., 44 W.Va. 612, 30 S.E. 201, 67 Am.St.Rep. 788. On this point see Doyle et al. v. Doyle, 52 N.D. 380, 389, 202 N.W. 860, 863.

[6] The capacity to execute a deed is the capacity at the time the deed is made. Delaplain et al....