Munson v. Carter

• Decision Date: 11 March 1886
• Citation: 27 N.W. 208,19 Neb. 293
• Parties: PHOEBE ANN MUNSON, APPELLEE, v. THOMAS W. CARTER, APPELLANT
• Court: Nebraska Supreme Court

27 N.W. 208

19 Neb. 293

PHOEBE ANN MUNSON, APPELLEE, v. THOMAS W. CARTER, APPELLANT

Supreme Court of Nebraska

March 11, 1886

APPEAL from Adams county. Heard below before MORRIS, J.

AFFIRMED.

Dilworth Smith & Dilworth, for appellant, cited: Mehlhop v Pettibone, 54 Wis. 652. Schultz v. Culburtson, 46 Wis 313. 49 Id., 122.

J. B. Cessna, for appellee, cited: Parsons Contracts, 392. Washburn Real Prop., 261. Eadie v. Slimmon, 26 N.Y. 9., Jordan v. Elliott, 22 American Law Reg., 190. Foshay v. Ferguson, 5 Hill, 154.

OPINION

MAXWELL, CH. J.

In March, 1884, the plaintiff filed her petition in the district court of Adams county, wherein she alleged that on the 25th of September, 1875, she became the owner of the south-west quarter of section twenty, township five north, range 11 west, in Adams county. That it was purchased with money belonging to her and advanced by her. That on May 23d, 1883, she was compelled to deed the same to defendant and take a life lease from him--she was then 65 years old and in feeble health. She was to have all the personal property on the land except one span of mules and certain blacksmith tools, and to have one-third of the then crops on the land. That defendant has failed and refused to comply with his part of the agreement, and has removed by force a large part of the personal property and grain on the land. The land was free from incumbrance, and worth $ 3.500.00. That she was not in debt to defendant in any sum; that the deed was delivered without any consideration. That when the deed was executed and the life lease accepted, the deed was procured by fraud, force, and superior will and intelligence practiced upon her, with the intention of cheating and defrauding her, by defendant. That she was under no obligation to make said deed, and that it was without consideration. That the acknowledgment was procured from her through coercion, force, and fraud, and was not her voluntary act. Prayer for reconveyance, and that the title be quieted in her.

To this petition the defendant filed his answer, stating: "That in 1873 the plaintiff and her husband, being in feeble health and advanced age, desired to make arrangements for their support in their declining years, did enter into a contract with defendant by which it was agreed that defendant should take care of and support the plaintiff and her husband; that in consideration thereof the plaintiff advanced $ 1,500.00 to purchase the land in question, and defendant did purchase the land, caused it to be deeded to plaintiff, and plaintiff then agreed with defendant that in consideration of his taking care of and maintaining plaintiff and her husband, and of taking care of the land and improving the real estate, that the said land and all other property which the plaintiff then owned and held, together with the increase of personal property, should go to and belong to the defendant.

"That in pursuance of said contract the defendant entered upon and took care of said real estate and personal property and continued to do so up to May 23d, 1883; that from the time of making said contract up to the 19th day of July, 1882, the said Charles Carter, the plaintiff's husband, lived with defendant, and died on said 19th day of July, 1882, and that from the time of making said contract to the time of his death he was unable, from bodily infirmity, to do anything towards the support of himself and the plaintiff.

"That from the time of making said contract to the death of said Charles Carter defendant took care of and supported the plaintiff and her husband, and after the death of the said Charles the said defendant continued to support plaintiff, as he had agreed to, up to May 23d, 1883.

"That since the making of said contract defendant has employed all his time and spent his money and labor in improving the land and in the support of plaintiff and her husband, and during said time has placed valuable and lasting improvements upon said premises to the value of $ 1.200.00, and has paid off a mortgage upon the premises to the amount of $ 400.00, and has paid out for plaintiff and her husband for their support and expenses, under said contract, about $ 1.600.00, all paid out by defendant under said contract.

"That all the earnings and labor of defendant for eight (8) or nine (9) years had been expended in support of plaintiff and her husband and in making valuable and lasting improvements on said land. For a second defense the defendant alleges that the plaintiff, desiring to re-marry, and not to have defendant support her any longer, and desirous of settling with and remunerating defendant for the labor done upon the land and taking care of and support of her and her husband, she did agree with this defendant to execute and deliver to him a deed for said premises, and the defendant executed to her a life lease on the same premises.

"That on May 23d, 1883, the said plaintiff, in accordance with said settlement, did, of her own free will and accord, execute and deliver to defendant a deed to said premises, and defendant executed and delivered to plaintiff a life lease of said premises, the consideration of said deed being the matters and things heretofore set forth, and a full settlement of all matters and claims and demands between defendant and plaintiff; that a full and complete settlement of all matters and controversies was made between plaintiff and defendant upon May 23d, 1883.

"That about May 23d, 1883, plaintiff was married; and answer denies all allegations contained in the petition not admitted or denied."

The reply is a general denial.

The plaintiff, in her testimony, after stating that the land in question was purchased and paid for with her money and that she had lived with her son for several years, testifies as follows:

"He had no property except what he raised on that farm. He would haul off the hogs and grain and he kept the money, and what I ate and drank was furnished me, and that was about all I did have. My husband died July 19th, 1882, of a cancer; there was not to exceed $ 5.00 spent for him; I took care of him night and day; would get up to lift him, and my son did not; I had to take care of him and change him; he would never lift him and tend him. In the winter Mr. Carter had a pre-emption; I wanted to come up and see something about it, and the means, he had six months, and he got the property."

Q. Tell us about this deed, the deed that you made to the defendant.

A. In the first place he tried that before his father died. He fetched him a deed that he got made out in the fall of 1881, and I saw Smith's name on the papers. I accused him of having a mortgage on the place, and he said he did not. Finally, in 1882, he fetched it along; he asked me to sign it and to look at it; I told him I would not do it, and I sprang for it and he put it into the stove. There was nothing more said about it until 1883. I wanted some money. I sold a horse the year before and took a note for part and the other I let him have, and I demanded it to go east with; he hauled off a couple of loads of hogs and fetched me the money and said, "Now, will you give me a deed to this place?" and I said, "No, sir, I will never sign a deed to this place so long as my head is hot." He said, "I have an injunction against you and will have you arrested in a day or two." He said "I want you to go to Hastings with me to-morrow;" and in the morning, asked me if I was going with him this morning, and I says, "I guess not," and he says the papers are in the officer's hands and he would have them served; that I could not go to Illinois; could not start out of the county; he had an injunction on everything I had and he would have it; he said he was going to have the place; had told me before he would be damned if he would ever leave the place and he was going to have it, he would be damned if he would ever leave it. I used to try to get him to go on his homestead after he had proved up on it. I cried nearly every night till I could not sleep, my health was poor. He said everything a man could say to a mother; when I was fussing with him about the pre-emption he called me a damned stinking bitch.

Q. What did he say to you in reference to your signing the deed?

A. He did not say much of anything, he would sit right in front of me.

Question by the court. When was this deed made?

A. The 23d day of May, 1883. I was sixty-seven years old the 19th of February last. In the spring of 1883, when this deed was made, my health was poor; was taken sick the October before with a disease that affected my nerves and my head; they call it Bright's disease. I was very poor and sick until after I married Mr. Munson. My husband died on May 30th, 1883. About that time my mind was wavering; I could not keep my mind at times when he would go to talk to me. I would be so sick I could not sleep, and cry and do nothing. It affected my health when I would cry; he would have me stop, and say the next thing there will be a doctor's bill to pay. At the time of signing the deed he said that I would have to go; that the papers were in an officer's hands and I would be arrested if I did not sign them. I was afraid of him for two years. The neighbors would come to me and tell me what he would say he would do and was going to do. I got into the wagon with him and he brought me to town. He said he was going to have some one else there in the house, it was too...