Mehus v. Thompson, 9436

• Decision Date: 17 May 1978
• Docket Number: No. 9436,9436
• Citation: 266 N.W.2d 920
• Parties: George Arthur MEHUS, Morris Mehus, Evelyn Holdahl, Raymo Mehus, Hazel Satrom, and Amy Thompson, Individually, and as Heirs of the Estate of Artha Mehus, Deceased, Plaintiffs and Appellants, v. Nina THOMPSON, Sammy Thompson, Federal Land Bank of St. Paul, a corporation,and the Federal Land Bank Association of Valley City, North Dakota, acorporation, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 920

266 N.W.2d 920

George Arthur MEHUS, Morris Mehus, Evelyn Holdahl, Raymo Mehus, Hazel Satrom, and Amy Thompson Individually, and as Heirs of the Estate of Artha Mehus, Deceased Plaintiffs and Appellants, v. Nina THOMPSON, Sammy Thompson, Federal Land Bank of St Paul, a corporation,and the Federal Land Bank Association of Valley City, North Dakota, acorporation Defendants and Appellees.

Civ. No. 9436.

Supreme Court of North Dakota.

May 17, 1978.

Rehearing Denied June 30, 1978.

John T. Paulson, Valley City, for appellants.

Vaaler, Gillig, Warcup, Woutat & Zimney, Grand Forks, for appellees, Nina Thompson and Sammy Thompson; argued by Robert Vaaler, Grand Forks.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for appellee banks, argued by Mart R. Vogel, Fargo.

PEDERSON, Justice.

This is an appeal from a judgment of the district court holding that a warranty deed from Artha Mehus to Nina Thompson was, in all respects, proper and valid and operated to convey a fee simple title to 260 acres of farmland in Steele County. The appeal is also from an order denying a motion for a new trial. We affirm the judgment and the order.

Artha Mehus was the mother of the plaintiffs (hereinafter identified as the Mehus heirs) and of the defendant Nina Thompson. She amassed considerable property during her lifetime. Artha Mehus had been an extremely diligent, capable woman, with excellent business sense and judgment. She was described as a demanding woman with a very dominant personality. Both Artha Mehus and her daughter, Nina Thompson, lived at Hatton, North Dakota.

From 1945 until shortly before the death of Artha Mehus, Nina Thompson assisted her mother in many and varied business affairs and, particularly in later years, in many housekeeping and personal affairs as well. By 1968, Artha Mehus' health restricted her to her home and largely confined her to bed. While most, if not all, of Artha Mehus' children assisted her in her personal and business affairs, the great bulk of these labors were performed by Nina Thompson.

In March or April of 1968, Nina Thompson obtained for her mother a blank deed form. Mrs. Mehus held the form for a number of weeks, until June 21, 1968, when she executed the deed and clipped thereto a slip of paper upon which she had written the description of the 260-acre tract in Steele County. Artha Mehus instructed Nina Thompson to take the deed to Mr. Gene Grindeland, a Mayville attorney, and to ask him to insert in the blank deed the description of property from the attached paper, and to name Nina Thompson as the grantee. Nina Thompson took the papers to Mr. Grindeland, who completed the deed in accordance with the instructions of Artha Mehus, acknowledged the signature of Artha Mehus, and caused the deed to be recorded in the office of the Register of Deeds of Steele County. Grindeland was familiar with Artha Mehus' signature. On April 7, 1971, Nina Thompson and Sammy Thompson, her husband, mortgaged the property to secure a loan from the defendant, Federal Land Bank of St. Paul.

In 1966 Artha Mehus had executed a power of attorney, naming Nina Thompson as her attorney-in-fact. In 1969, several months after the deed had been executed and recorded, the power of attorney was revoked and two of the Mehus heirs were named as attorneys-in-fact for Artha Mehus. She died on June 21, 1970, approximately two years after the deed to Nina Thompson.

As early as 1969, the Mehus heirs, or some of them, discussed among themselves the bringing of an action to set aside the conveyance and consulted attorneys on at least two occasions to discuss this matter. Prior to the death of their mother, they urged Mrs. Mehus to institute an action against Nina Thompson to have the deed set aside. Two of Artha Mehus' sons arranged to have an attorney call upon her for the purpose of discussing an action to set aside the deed to Nina Thompson. Artha Mehus never authorized the institution of an action to set aside the deed during her lifetime and none was brought. The Red River National Bank & Trust Company, as the administrator or personal representative of the estate of Artha Mehus, has not commenced or maintained an action on behalf of the estate to set aside the deed.

This suit, alleging undue influence on the part of Nina Thompson, was commenced on June 19, 1974, approximately six years after the execution and recording of the deed. After trial without a jury, the court concluded (1) that there was no evidence to support the Mehus heirs claim that Nina Thompson dominated Artha Mehus or exercised or practiced undue influence upon Artha Mehus in any way or at any time; (2) that the deed from Artha Mehus to Nina Thompson conveying the 260 acres was in all respects proper and valid and operated to convey fee simple title to Nina Thompson The Mehus heirs raise numerous issues wherein they contend the trial court erred in its failure to admit certain testimony and documents into evidence and that the trial court erred in several determinations of law, all to the prejudice of the Mehus heirs.

(3) that the mortgage given by Nina and Sammy Thompson to the defendant, Federal Land Bank of St. Paul, covering the 260 acres, was in all respects proper and valid and was a valid lien upon the property of Nina Thompson; (4) that the Mehus heirs were guilty of laches in the maintenance of the suit; and (5) that the defendants are entitled to judgment.

I. ISSUES OF EVIDENCE

During the course of trial, the Mehus heirs attempted to elicit the testimony of Roger Kringlie and Raymond Rund, both attorneys at law who had performed services for Artha Mehus during her lifetime. The trial court refused to allow the testimony of either attorney. The testimony of Attorney Kringlie was refused because the trial court found it irrelevant and because of the attorney-client privilege which was found to exist between Artha Mehus and Attorney Kringlie. The testimony of Attorney Rund was refused because of the attorney-client privilege.

We hold that the refusal of the trial court to hear the testimony of Attorney Kringlie was proper. In his offer of proof, the attorney for the Mehus heirs stated that Attorney Kringlie would testify to a scheme or plan of the decedent with respect to distribution of her property. At this point the trial court sustained an objection on the basis of irrelevance. The test as to whether evidence is relevant or irrelevant is whether it would reasonably and actually tend to prove or disprove any matter of fact in issue. Beck v. Lind, 235 N.W.2d 239 (N.D.1975). Attorney Kringlie's testimony could only indicate that Artha Mehus had considered a plan for disposing of her property. If that plan were not followed, it would only serve to show that Artha Mehus had changed her mind and would be no indication as to why she had changed her mind.

The testimony of Attorney Rund was excluded solely because of the attorney-client privilege. Rund exercised the privilege himself, on behalf of his client, Artha Mehus. While it is true that there is a general rule that confidential communications between an attorney and his client are privileged, this rule is not without exceptions. One of the exceptions was adopted by this Court in the case of In re Graf's Estate, 119 N.W.2d 478, 481 (N.D.1963). There, this Court explained that some "communications lose their confidential character after the death of the client and that such communications can be shown in litigation between parties, all of whom claim under the client. . . . The courts which adopt this view do so on the theory that, in a controversy not adverse to the estate, between heirs at law, next of kin, devisees, legatees and personal representatives, the claim that the communication was privileged cannot be heard. In such case, the interest of the deceased as well as that of the estate is that the truth be ascertained." In re Graf's Estate, supra, at 481. ¹ In this case all the parties are children of Artha Mehus, or claim through children of Artha Mehus. We hold that the rule of In re Graf's Estate should have been applied and that the trial court erred in refusing to hear the testimony of Attorney Rund.

Though we have held that it was error to exclude the testimony of Attorney Rund because of the attorney-client privilege, we also hold that the error was not prejudicial. Rund's testimony should not have been excluded by the attorney-client privilege, but his testimony is, nonetheless, subject to the Rules of Evidence. In order to preserve evidence for appeal, counsel for the Mehus heirs made the following offer of proof:

"MR. PAULSON: If Mr. Rund were allowed to testify, he would testify that on or about the 20th day of February, 1969 and for a one or two times prior thereto he met with the decedent, Artha Mehus, concerning two subjects.

"One, the subject of revoking Nina's power of attorney which is referred to in plaintiffs' exhibit No. 1, or which is referred to as plaintiffs' exhibit 1;

"That he conferred with her concerning a purported gift of 280 (sic) acres of land, namely that land, described in plaintiffs' exhibit No. 2.

"That as a result of those conversations and conferences he prepared the revocation of the power of attorney and he prepared the affidavit that those conversations would reveal that the decedent made a claim that she never gave this property or never intended to give this property to her daughter, Nina Thompson.

"And further, that she had told her, all of her other children that she had never intended nor never gave this property to Nina Thompson which is the subject of plaintiffs' exhibit No. 2.

"And that further that she told Mr. Rund during this time period, during the conversations that she was slapped by her daughter, Nina Thompson, concerning conversations over this land and that she feared that when the information of the affidavit got out that her daughter would continue to slap her or abuse her."

Mr. Rund's testimony,...