Nordby v. Sagen

• Decision Date: 15 January 1934
• Docket Number: No. 6226.,6226.
• Citation: 64 N.D. 376,252 N.W. 383
• Parties: NORDBY et al. v. SAGEN.
• Court: North Dakota Supreme Court

64 N.D. 376

252 N.W. 383

NORDBY et al.

v.SAGEN.

No. 6226.

Supreme Court of North Dakota.

Jan. 15, 1934.

Syllabus by the Court.

1. Before the court will set aside a conveyance on the ground of mental incompetency of the grantor, it is necessary to show that the grantor, at the time of the execution of the instrument, was so weak mentally as not to be able to comprehend and understand the nature and effect of the transaction involved.

Appeal from District Court, Grand Forks County; P. G. Swenson, Judge.

Action by Gunnar Nordby and others against Kittel H. Sagen. Judgment for defendant, and plaintiffs appeal.

Affirmed.

Thoresen & Paletz, of Grand Forks, for appellants.

O'Keefe & Peterson, of Grand Forks, for respondent.

BURR, Chief Justice.

As stated by the appellant: “The action involves an attempt by the plaintiffs to set aside and declare null and void a certain Warranty Deed made, executed and delivered by one Torbjorn O. Nordby on the 5th day of February, 1932, to the defendant Kettil H. Sagen and also assigned over a certain mortgage executed and delivered on the same date to the said Kettil H. Sagen by the said Torbjorn O. Nordby. The plaintiffs are the next of kin of the said Torbjorn O. Nordby, deceased, and bring the said action as heirs at law of the said Torbjorn O. Nordby. The action is based on the theory that the deceased, Torbjorn O. Nordby did not have sufficient mental capacity to know and understand the business, which he was transacting at the time that the said instruments were executed. That there is no consideration for the said transfer and that they were obtained by the defendant by fraud and undue influence.”

The case was tried to the court without a jury. The court made findings of fact and conclusions of law with order for judgment favorable to defendant, and plaintiffs appeal demanding a trial de novo.

Nordby died February 14, 1932, aged 73 1/2 years. He was born in Norway; but had lived in the United States over thirty years. He was unmarried, and at the time of his death his immediate relations consisted of two brothers and two sisters-the two sisters and one brother live in Norway-and two nephews living in the United States, children of a deceased sister.

For over twenty-five years the deceased had lived in Grand Forks. He accumulated considerable property consisting of the house and lot and the mortgage for $500 involved in this case, $3,800 in other mortgages and stock said by the administrator to be worth about $3,650, a second mortgage for $1,800 said to be practically worthless, and some other property.

The personal relations between the deceased and his immediate relatives appeared to be quite cordial, and there is no question but what the relations existing between the decedent and the defendant were very friendly.

The defendant was about 40 years of age at the time of the transfer, and had been acquainted with the decedent since 1914. He testified that there was a distant relationship between them; but this is denied by others.

Decedent was a retiring, reticent man-a recluse, the doctor called him-apparently shunned companionship to any particular extent, and for years had been suffering from ill health. However, for years it was his custom to build and rebuild houses, sell them, and build more. He engaged in manual labor, lived frugally, was kind to children, discussed literary matters with friends, read the papers and books, and kept largely to himself. He had been in the hospital from time to time, underwent various operations, and in December, 1931, was again in the hospital for an operation. Upon his own insistent demands, and against the advice of his physician, he was taken to the home of the defendant, where he died on February 14, 1932. The doctor said he “died of what we call a complication of diseases, retention of the urine, inflammation of the bladder which probably extended into the kidneys, and pneumonia, involving the lower lobe of the left lung. Towards the last it spread to the right lung.” When asked “from the time that he contracted pneumonia until the time of his death he gradually grew worse?” he said, “Yes.” Shortly before his death, and at his own request, he was visited professionally by two ministers of the Gospel. Friends not connected with any of the transactions called upon him during his last illness and at least one was with him when he died. The defendant and his wife took care of him as nurses, under the direction of the physician.

The defendant states that on or about February 5, 1932, at the direction of the deceased, he called on one Fladland, and informed Fladland that the deceased wanted him to come to his room and prepare and have executed papers deeding to the defendant the house and lot involved herein. At the request of Fladland, one Glaserud accompanied him. Both F. and G. were men engaged in real estate business and were notaries public. F. states the reason he requested G. to accompany him was because he knew the decedent was a sick man, and, when transacting business with a sick man, he thought it wise to have others familiar with business present at the occasion. It was G. that drew the papers, read them to the decedent and assisted in the execution, and it was not until F. and G. called on the decedent that they knew he desired also to assign the mortgage for $500. This caused some delay in order to secure the necessary blanks, but the deed and assignment were executed at the direction of the decedent and given to defendant, who had them placed on record.

The transfers were gifts, if valid. No consideration was given for the property. The burden of proof is upon the plaintiff to show that at the time of the transfer the decedent was not of sufficient mental competence to understand the meaning of the transaction.

The trial court, in a carefully prepared memorandum opinion, analyzes all of the testimony and particularly the testimony of the witnesses who visited with the decedent during the last two or three weeks of his lifetime.

“Upon a trial de novo, the Supreme Court, in deciding the facts, acts independently of the trial court's findings, although such findings, when based upon oral testimony, are, of necessity, entitled to and will be given some weight.” Merchants' National Bank v. Collard et al., 33 N. D. 556, 157 N. W. 488.

Though this court is vested with the duty of trying the case anew, this does not require the Supreme Court to wholly disregard the views of the trial court upon matters where, by the very nature of things, its judgment is more likely to be correct than any which the appellate court could form, for this court does not try the case anew in the sense of a new trial, for witnesses do not appear and testify. The court tries the case anew upon the record prepared; that is, this court bases its independent judgment upon the testimony already taken. Klimpel v. Hayko, 47 N. D. 416, 182 N. W. 535. Thus the finding of the trial court should have some weight and...