Meyer v. Kiecksee

• Decision Date: 26 May 1941
• Docket Number: 8394
• Citation: 68 S.D. 43,298 N.W. 261
• Parties: THEO F. MEYER, guardian of Fritz Kiecksee, an incompetent person, Respondent, v. WILLIAM KIECKSEE, Appellant
• Court: South Dakota Supreme Court

68 SD 43, 298 NW 261 (1941)

THEO F. MEYER,

guardian of Fritz Kiecksee, an incompetent person,

Respondent,

v. WILLIAM KIECKSEE,

Appellant

South Dakota Supreme Court

Appeal from Circuit Court, Moody County, SD

Hon. Lucius J. Wall, Judge.

#8394—Reversed.

Loren G. Atherton, Flandreau, SD

Evans & E:vans, Pipestone, Minn.,

Danforth & Danforth, Sioux Falls, SD

Attorney for Appellant.

Rice & Rice, of Flandreau, SD

Attorney for Respondent.

Opinion Filed May 26, 1941; Modified July 17, 1941

POLLEY, P J.

This is a suit in equity brought to cancel and set aside a deed to a piece of real property, on the ground that the deed was obtained by fraud, misrepresentation and undue influence. Fritz Kiecksee was the grantor. He was a German by birth and could speak and understand the German language, and knew enough English so that he could carry on a conversation in English, but not so well as he could in German. In 1916 he was the owner of two quarter sections of land (W1/2 34—108—47) near the town of Ward in Moody County. He head gone upon this land, farmed it and occupied it as a home since 1902. He had a family consisting of his wife, four sons and one daughter; two of the sons, Herman and Helmuth, lived out of the state and do not appear from the record to have ever lived in this state. The other two sons, William and Henry, were farmers living in Ward Township. The daughter, Mrs. Zarecky, lived in Colman, in Moody County.

In the fall of 1916 Kiecksee entered into an agreement in writing with his son William, whereby he agreed to convey to William the NWJ/4 of said land upon the payment by William of $12,800; $1,000 of said sum to be paid on the 1st of March, 1917, and the balance at the rate of $300 per year with 69 interest on the unpaid balance until it was all paid. On the 1st of March, 1917, Fritz and his wife, who were then residing on the said quarter section of land, moved into a house owned by him in the said town of Ward; William moved onto the land described in the contract, and continued to reside there until the trial of this case. He paid the interest in full at the rate of 6So up to the 1st of March, 1922, amounting to approximately $2,400, when Fritz, without solicitation, reduced the rate of interest from 6 % to 4fo, and William paid the interest at 4S, amounting to approximately $2,800, until the 1st of March, 1932.

Just when and in what amounts William made payments for the land does not appear from the record, nor is it material, because it is admitted by all parties concerned that by the 1st of March, 1932, he had paid all of the interest that had accrued up to that date and in addition thereto had paid $5,800 on the principal. No payments have been made since that date.

About the 8th of March, 1934, Mrs. Kiecksee died. This, in the opinion of Henry, who expects to profit largely by this lawsuit, affected Fritz’s mind to such an extent that he was never rational thereafter, but nothing in his conduct showed any change. He continued to live in the home that he and his wife had been occupying; kept house for himself, and did his own cooking, except that Henry’s wife testified that she came to town once or twice a week and brought him some “eats” and cleaned up the house for him. Henry and his wife were then living on the S.W. 1/4 of said Section 34.

During the month of April, 1934, the month following the death of Mrs. Kiecksee, Fritz made his will. The first mention of the will was by Fritz, who said to Henry: “When you have time come and take me into Elkton.” “He said he was going to make a will.” Soon after that Henry took him up to Elkton and on their arrival at Elkton they went to the Corn Exchange Bank, whose managing officers, Lester Forman and Robert Petschow, were German and talked and understood the German language. Fritz had been doing business at this bank off and on for the past thirty years and had unbounded confidence in the officers thereof; and he went to this particular bank on this occasion because he could do business with the officers of the bank in the German language. Fritz told Lester Forman, the president of the bank, in German, that he wished to make his will. The matter was talked over in German and Mr. Forman drew the will. In this will Fritz left the SW 1/4 to Henry, subject to a legacy of $500 Henry was to pay to Helmuth; the NW 1/4 of the section was left to William, subject to a legacy of $500 William was to pay to Herman. He then devised his house and lot in the town of Ward to Henry’s wife. Mrs. Zarecky had borrowed $1,000 from Fritz some years before and this indebtedness was canceled by the terms of the will. His other property consisting of some cash, bank stock and other personal property was to be divided equally among his five children. The will, when so drawn, was executed by Fritz and left in the bank. Henry was present throughout this entire transaction but testified that he took no part in the preparation of the will, or the disposition of the property, other than to act as interpreter for Mr. Forman and his father. The making of this will and the disposition of the property made thereby was pursuant to a determination made by Fritz several years before and which had been frequently talked over with members of the family before the death of his wife.

During the time between the execution of the contract for the sale of the land in 1916, and 1934, the land had depreciated in value to such an extent that by 1934 the land was not worth more than $40 to $55 per acre. William had already paid this amount on the contract, and it appeared to Fritz that it would work an unfair hardship on William to compel him to pay another $7,000 for the land when he had already paid all the land was worth. This situation was talked over to some extent by William and his father, but William did not suggest that Fritz should forego the making of further payments on the land and nothing was said by William at any time about the execution of a deed. About the latter part of June, 1934, Fritz met William on the street in the town of Ward one day, and Fritz asked William (quoting from the transcript):

“... if I had a little time and could come in as he wanted to go to Elkton and wanted me to take him and he said he was going to give me a deed.” (This is the first time the making o a deed had been mentioned by anyone).

A. “I said alright.”

Q. “Did he tell you he wanted you to go?”

A. “He wanted me to take him up” (meaning to the town of Elkton).

Q. “But what he wanted you to pay.”

A. “He said I had so much in there, and that was enough. He said the whole half section cost him $7200 and I had paid this much in there and that was enough. He was going to give me a deed.”

Q. “Did you say anything about what you would do for him?”

A. “No.”

Q. “Didn’t you say you would pay as you were able to pay?”

A. “After I had the deed?”

Q. “At the time you got the deed or about that time?”

A. “No, I don’t know that I did.”

Q. “Did you tell any of the other members of the family that you had gotten a deed to that quarter section?”

A. “Not at that time.”

On arriving at Elkton they went to the bank above mentioned where Fritz told Mr. Robert Petschow (one of the bank officials), in German, that they had come to have him draw a deed; that he was going to deed William the land he had sold him; that William had paid him all the land was worth and that he wanted to give him a deed without further payments. Mr. Petschow said he would prepare the deed and proceeded to do so. When the deed was written Fritz signed it and Mr. Petschow, who was a notary public, took his acknowledgment. The deed was then turned over to Fritz and he in turn gave it to William. All of their talk relative to the preparation and execution of the deed was carried on in the German language. On the 13th day of July, about two weeks after the execution of the deed, William filed it for record in the Register of Deeds office, in and for Moody County. When Henry learned that William had a deed for the land he was greatly angered and claimed that William had secured the execution of the deed by the exercise of undue influence, and that the same was void. Had William been required to pay the balance due under the contract and the interest thereon, said money could have gone into the old man’s estate and Henry, as an heir of his father’s estate after the old man’s death, would have been entitled to a portion of the same. What, if any, pressure was brought to bear on Fritz to induce him to start a suit to nullify the deed does not appear from the record, and no action of any kind appears to have been taken until the 30th day of November, 1937, when Henry, and apparently his brothers and sister, petitioned for and secured the appointment by the County Court of Moody County of a guardian of their father’s estate, and on the 26th day of April, 1939, five years after the execution of the deed this action was commenced by said guardian to set aside and cancel the said deed.

Plaintiff in his complaint alleges that at the time of the execution of the deed, Fritz Kiecksee was not of understanding mind and was incompetent and incapable of transacting any business, and plaintiff further alleges as follows: “That the defendant William Kiecksee is a son of the said Fritz Kiecksee and a person in whom he relied in the conduct of his business; that on the 29th day of June, 1934, the said Fritz Kiecksee was approximately 83 years of age, in feeble health and, as petitioner is informed and verily believes, mentally incompetent, and on the said day the said William Kiecksee fraudulently and by means of undue influence then and there practiced over and upon the said Fritz Kiecksee, induced him to execute and deliver to him a warranty deed purporting to convey to him the real property described and to release him from all obligations on the contract for deed referred to; that the deed referred to was filed for...