Lesser v. Lesser, 16894

• Decision Date: 06 October 1952
• Docket Number: No. 16894,16894
• Parties: LESSER v. LESSER.
• Court: Colorado Supreme Court

Page 130

250 P.2d 130

128 Colo. 151

LESSER v. LESSER.

No. 16894.

Supreme Court of Colorado, en Banc.

Oct. 6, 1952.

Riffenburgh & Harden, Fort Collins, for plaintiff in error.

Southard & Southard, Greeley, for defendant in error.

JACKSON, Chief Justice.

In a suit for rescission of a deed, plaintiff obtained favorable judgment and the losing defendant comes here, as plaintiff in error, seeking reversal. All parties involved bear the same family surname, Lesser. Reference is herein made to them by their Christian names.

Jacob, the grantor in the deed and successful plaintiff in the trial court, was the father of Henry, the grantee. Henry's death occurred some fourteen months after the execution of the deed, and before the commencement of the present suit. His widow, Ida, being his sole surviving heir-at-law, is the defendant in this suit. Jacob at the time of the trial was about eighty years old. A German by birth, he used a dialect that prevented understanding with the available interpreter at the trial. Because of this the trial judge stated that the meagre testimony thus elicited from Jacob was practically valueless and was not to be taken into account in the court's findings and judgment. Thus there is presented the unusual case in rescission of a deed where the testimony of neither grantor nor grantee is available.

The record further discloses that Jacob, at the time of the execution of the deed, lived alone in Loveland on a small place subsequently appraised at $1,500. His son Henry, who was one of a number of children of Jacob, lived in Greeley. Apparently he was the only child who took any interest in his father or kept in contact with him. He seems to have helped him in respect to some of his business affairs, including the payment of taxes and insurance, collection of proceeds of sales of fruit or other produce from his place, the handling of his laundry, and also seeing that he was properly supplied with groceries and other necessities. His out-of-pocket expenditures on behalf of his father, prior to the execution of the deed, are not shown. This visiting of Jacob by his son Henry had occurred over a considerable period of years.

September 22, 1949, Freida Conrey, a niece of Jacob who lived on a neighboring place, found him in his bathroom quite violently ill and apparently in considerable pain, as a result of which he was somewhat incoherent in his speech. She and a neighbor lady helped him back to his bed and then called his son Henry in Greeley who immediately came over to see his father.

Carl W. Kibbey testified that, in response to a request from Dr. Datz, he drove his ambulance to the home of Jacob for the purpose of taking him to the hospital, but that Jacob resisted and refused to go. Kibbey reported this refusal to Dr. Datz. The first call was at ten-thirty in the morning. During the same morning Henry consulted Kibbey concerning the preparation of a deed running from Jacob to Henry conveying Jacob's home. In addition to owning and operating a mortuary and an ambulance service, Kibbey was also a notary public. He testified that he referred Henry to Hatfield Chilson, a lawyer in Loveland, who apparently did prepare a warranty deed running from Jacob as grantor to Henry as grantee conveying Jacob's home. Around the noon hour of the same day Henry and Kibbey again visited Jacob, where, with all three present, Henry showed Jacob the deed that had been prepared for his signature and a conversation then took place between Jacob and Henry in their German dialect which Kibbey could not understand, but from their manner of speaking, in quiet and unexcited tones, it appeared to him that Henry was explaining to Jacob the nature of the document. Finally Jacob apparently signified his willingness to sign by nodding his head, and then took a pen and made his mark.

Kibbey further testified that he wrote the name of Jacob for the grantor on the same line as his mark. After he returned to his office he completed the acknowledgment on the deed. He further testified that, in addition to completing the acknowledgment, he signed the deed as a witness and asked Mrs. Weaver also to sign as a witness, which she did. The deed, which was introduced in evidence, shows a cross-mark, with Jacob's name written on the same line. It also shows the acknowledgment by Kibbey and the signatures of Kibbey and Mrs. Weaver as witnesses, and its recordation on the 23d day of September, 1949, in the office of the county clerk and recorder of Larimer County.

The evidence also shows that Jacob, upon a third visit by Kibbey in the evening of the same day, was persuaded to go to the hospital, Kibbey taking him there in his ambulance. After a three weeks sojourn in the hospital, Jacob seemed to have made a recovery from his illness and resumed living in his Loveland home, in the same fashion as previously, for a period of approximately one year and three months, at which time his son Henry died, December 25, 1950. Henry's widow, Ida, testified that at that time Jacob was drawing a pension for the blind, and that he might have been drawing it for some time previous. When the suit was filed Jacob was not living in his home in Loveland, but had moved to a home apparently in Greeley where he was recipient of a pension for the blind.

As to the question of Jacob's competency at the time of the execution of the deed, Kibbey testified that Jacob seemed to understand what he was doing. The testimony of Mr. and Mrs. Schneider, neighbors of Jacob, was to the effect that they had never seen him when he did not seem to comprehend fully what he was doing, and they stated in substance that he at all times seemed to be mentally competent.

Ida identified checks drawn by Henry on his personal account totaling about $774.67 representing expenditures made on behalf of his father, Jacob, between September 22, 1949, and the time of Henry's death. She stated that she did not know, of course, what transactions had gone on and what sums Henry might have collected during that time on behalf of his father--such as the blind pension checks and payments for fruit grown on the place that might have been sold. Testimony also discloses, and it was not contradicted, that Henry maintained a bank account for Jacob in Loveland, while the checks he wrote from his own funds on Jacob's behalf were drawn on Henry's bank in Greeley. Ida testified that Jacob had operations on his eyes in 1950.

Ida's brother, Raymond Benner, testified that as early as 1945 he had accompanied Henry on numerous trips to Loveland to visit Jacob, at which times Henry would buy groceries and fuel for Jacob.

The trial court entered judgment holding the deed invalid, and ordered Ida to refund two months rent totaling $40 which she had collected from Jacob's home in Loveland after he had left it. Offsetting this, it ordered Jacob to refund the general property tax which Henry's estate had paid on Jacob's home.

The court's findings were generally in favor of Jacob. In a memorandum opinion it laid stress upon the fiduciary relationship existing between son and aged father, stating that this raised a presumption that the deed was invalid. This the court gave as one reason justifying the setting aside of the transfer, and as a second ground it stated that Jacob was mentally incompetent at the time he executed the deed.

The basic principle of law applicable to cases of rescission of deeds in this jurisdiction is that, before rescission can properly be granted, the facts justifying it must be proved, not merely by a preponderance but by more than a preponderance of the evidence. In fact, the following cases hold that the evidence must be beyond a reasonable doubt. Wilson v. Morris, 4 Colo.App. 242, 36 P. 248; Robbins v. Nelsen, 70 Colo. 504, 202 P. 707; Berlin v. Wait, 71 Colo. 533, 208 P. 482; Roberts v. Roberts, 113 Colo. 425, 158 P.2d 184.

We said in Martinez v. Martinez, 57...