Meyer v. Russell
| Decision Date | 16 May 1927 |
| Docket Number | 5040 |
| Citation | 214 N.W. 857,55 N.D. 546 |
| Court | North Dakota Supreme Court |
Rehearing denied August 16, 1927.
Appeal from the District Court of Cass County, Englert, J.
Reversed.
Judgment reversed. Judgment ordered for the defendant.
Lovell & Horner, McIntyre, Burtness & Robbins, and Wood & Breaw, for appellant.
"The extent of remoteness of time and place concerning which evidence will be received as to the reputation of a party or witness rests largely in the discretion of the trial court and depends also in a large measure upon the particular facts and circumstances of each case." Ward v. Thompson (Wis.) 131 N.W. 1006.
Evans v. State (Okla.) 34 L.R.A. (N.S.) 577, 115 P 809.
"The title of the act may be considered as a means for arriving at the legislative intention." State v. Drakeley, 26 N.D. 87, 143 N.W. 768.
"In a will contest it was not error to sustain objections to questions of physicians whether one in the stages of senile dementia would have the capacity to know the natural objects of his bounty." Re Walsh (Mich.) 163 N.W. 70.
"Understanding the nature of the act means, to invalidate a deed, that the grantor must be incapable of comprehending that the effect of the act would divest him of the title to the land as set forth in the deed." Miller v. Folsom (Okla.) 149 P. 1185.
"A grantor who has mental capacity sufficient to understand ordinary business transactions at the time of the factum and understands the motive and effect of the deed which he makes, knows what property he is conveying and to whom it is being conveyed, is competent to make such deed." Kelly v. Perrault (Idaho) 48 P. 45.
The burden of establishing the mental incompetency or incapacity to execute a deed is upon the parties alleging the same. Nelson v. Thompson, 16 N.D. 295; Cogland v. Church (Iowa) 203 N.W. 812.
Shure & Murphy, for respondents.
In the absence of statutory provisions the death certificate of physician or a health record alleged to be based thereon is incompetent being hearsay and because of their privileged character. Pence v. Meyers (Ind.) 101 N.E. 717.
"The hypothetical question may include any state of facts which the evidence tends to prove." 11 R. C. L. 579, § 11.
Delivery is a question of intention, it is not necessary that there be any manual transfer of the instrument in question." McGrath v. Hyde (Cal.) 21 P. 948; Whitney v. American Ins. Co., 59 P. 897.
"What constitutes a sufficient delivery of a deed is largely a matter of intention, and the usual test is, did the grantor by his acts or words, or both, manifest an intention to make the instrument his deed and thereby divest himself of title." Kelsa v. Graves (Kan.) 68 P. 607.
"Whether a delivery is so far completed as to pass the title is a question of fact, depending largely upon the intent of the grantor to vest the estate in the grantee." Chastek v. Suba (Minn.) 101 N.W. 618.
"It is a general rule supported by unanimous weight of authority that the constitutionality of a statute cannot be first questioned on appeal in a civil action." 3 C. J. 710, § 608; 6 R. C. L. 95, § 96.
This is an action to set aside and cancel a deed executed by Clara B. Schmidt-Russell, to Horace G. Russell her husband, on the 20th day of November, 1922, to certain property in the city of Fargo, N.D. of the approximate value of $ 100,000.
The plaintiff, Edward A. Meyer, is Mrs. Russell's brother of half blood, and the other plaintiffs are sisters of half blood. The complaint alleges that Clara B. Schmidt was mentally incompetent at the time of the execution of said deed, and that the same was procured by fraud and undue influence; that the deed was never delivered, and if delivered, was not to take effect until after the death of the grantor. The defendants deny each allegation, of fraud, undue influence and incompetency, and specifically alleges, that the deceased was mentally competent, the deed executed freely and voluntarily and delivered to the grantee.
The trial court at the close of the testimony, decided each allegation in favor of the plaintiffs, and thereafter made findings of fact in effect that Clara B. Schmidt-Russell was mentally incompetent to execute the deed at the time of its execution, and as a conclusion of law, that the deed was void, upon which judgment was entered cancelling and setting aside said deed. Defendant appeals to this court for a trial de novo.
There are specified thirty errors of law in the admission of testimony, and that the evidence is insufficient to support the findings of fact and conclusions of law.
The instrument assailed, on its face is a warranty deed. Clara B. Schmidt-Russell signed the deed by her mark in the presence of two witnesses, and acknowledges the signing of the same before a notary public. The evidence shows that some time before the 22nd day of November, the defendant asked attorney Wood to draw a deed in which Clara B. Schmidt-Russell would be named as grantor, and the defendant, Horace Russell, as grantee, and by the terms of which Clara Russell would grant and convey to the defendant, certain property in the city of Fargo, N.D. The description of said property was taken from the tax receipts and included in the deed executed on the 22nd day of November 1922. On that day attorney Wood, accompanied by his stenographer who was a notary public, went to the home of the grantor and grantee in said deed, to have the deed executed. The witness, Charles H. Graham, who was conducting a grocery store not far from the home of the defendant, one Henry E. Tietgan at the request of the defendant were present at the time of the execution of the deed, and signed the same as witnesses.
The testimony of the defendant, attorney Wood, Charles H. Graham, and Lucile Higgins is, in substance, that when the parties were all present, Mr. Russell and the nurse, Mrs. McKinnon, lifted Mrs. Russell up, placed pillows behind her, and Mr. Wood told Mrs. Russell that he had a deed for her to execute. He read the formal parts and when he came to the first description after reading, Mrs. Russell said, "That was the Palace," and when he finished reading each description, he asked Mrs. Russell if she understood and knew the property which she was conveying to her husband, and she would reply that she did. As Mr. Wood completed the reading of descriptions, he gave her the street number and location of the property, and asked her if she understood and knew the property, and in each instance she did. After reading the deed Mr. Wood said to Mrs. Russell, "You are by this deed conveying the majority of your property to your husband, is that what you want to do?" She said, "Yes, papa and I have talked it all over, and we have a complete understanding and that is what I want to do." Then the deed was presented for her signature, a magazine was placed on her lap, Mr. Russell brought the pen and ink, and placed the pen in her right hand, took hold of her hand in his, and the signature was made in that manner. Mr. Wood said, "I requested her to make a mark owing to the fact that her hand was guided by Mr. Russell," and the mark was made. Mr. Wood took the deed, handed it to Mr. Graham who signed the same, as a witness, and it was then signed by Mr. Tietgen. It was then handed to Lucille Higgins, who asked Mrs. Russell if she had signed the deed, and whether that was her signature, Mrs. Russell replied, that she had, and Mr. Wood said, "You have signed this, Mrs. Russell, under your own free will and accord?" And Mrs. Russell said she had. Mr. Wood then took the deed and asked Mrs. Russell if she wished him to deliver the deed to Mr. Russell and Mrs. Russell said that she did. Wood then delivered the deed to Mr. Russell who paid to Mrs. Russell $ 10 in new one dollar bills, the money was laid in Mrs. Russell's hands, and she drew them up to her breast, smiled, and said, she didn't think she would have very much use for that money. The testimony of all the witnesses present shows that the deed was executed in the foregoing manner and was delivered to the defendant at Mrs. Russell's request.
The nurse, Mrs. McKinnon, states, that she was not present at the time the deed was executed, that Mr. Russell told her that she might leave early that afternoon, as he was going to have some people in, on some business transaction. This is denied by Mr. Russell and all the witnesses who were present when the deed was executed testify that Mrs. McKinnon was present and that she helped to prop Mrs. Russell up in bed so she could be in a sitting position when she signed the instrument.
It is clear from this testimony that the instrument is not a will but a deed executed freely and voluntarily. It is also clear that it was delivered to the defendant. To hold otherwise would be in the face of the positive testimony of disinterested witnesses.
In further support of the deed the defendant claims, and the evidence shows that he married Mrs. Russell on the 23rd day of Oct. 1906, and they lived continuously together as man and wife up until the time of her death in October, 1923. At the time of their marriage Mrs. Russell had property valued...
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State v. Voges
...initiative. The statute referred to, supra, does not apply. Other states having statutes of like wording reach this result. Meyer v. Russel, 55 N.D. 546, 214 N.W. 857; Culver v. Union P. Ry., 112 Neb. 441, 199 N.W. Southwest Metals Co. v. Gomez (C.C.A.) 4 F.2d 215, 39 A.L.R. 1416; Borosich ......