Pels v. Stevens

• Decision Date: 07 July 1919
• Docket Number: No. 32704.,32704.
• Citation: 173 N.W. 56,187 Iowa 443
• Parties: PELS v. STEVENS ET AL.
• Court: Iowa Supreme Court

187 Iowa 443

173 N.W. 56

PELS

v.STEVENS ET AL.

No. 32704.^a1

Supreme Court of Iowa.

July 7, 1919.

Appeal from District Court, Carroll County; M. E. Hutchinson, Judge.

Action to set aside a deed on the ground of fraud. Decree for the defendants dismissing plaintiff's petition. Plaintiff appeals. Opinion states the facts. Reversed.Reynolds & Meyers and L. H. Salinger, all of Carroll, for appellant.

Chas. C. Helmer and Lee & Robb, all of Carroll, for appellees.

GAYNOR, J.

This action was commenced on the 30th day of December, 1911. It was brought to set aside a certain quitclaim deed executed by the plaintiff, and to quiet title, in him, to the land described in the deed. Prior to the 1st day of August, 1894, the land was owned by one Gerhard J. Stevens, who died on or about that date, testate, leaving surviving him his widow, Mary Stevens, Henry and Herman Stevens, sons, and Mary Korwes, a daughter, and the plaintiff herein, John Pels, the only child of a deceased daughter. His will was admitted to probate September 6, 1894. At the time of his death he was the owner of a certain 109 acres of land known as the “home farm.” He also owned 240 acres of land in a separate tract. This is the land in controversy. In his will he bequeathed to the plaintiff, John Pels, the 109 acres which was occupied as a home, and known as the “home farm.” The 240 acres he bequeathed, share and share alike, to his three children, and to the plaintiff. The will, however, gave the wife a life estate in all the land. John Pels, the plaintiff, is the only son of the testator's dead daughter. He came to live in the home of the testator when he was about six months old, and continued to live there until the death of the testator, and was then about 15 years of age. After testator's death, he continued to live with his grandmother, Mary Stevens, on the home farm, and cultivated it under some arrangement with his grandmother by which he paid her rent.

On the 2d day of January, 1902, this plaintiff executed a quitclaim deed, to all his interest in the 240 acres, to his uncles and his aunt, defendants herein. His grandmother, Mary Stevens, joined in this deed. At the same time, these sons and daughter executed a life lease of this 240 acres back to their mother, Mary Stevens. On the 15th day of June, 1909, Herman Stevens, one of the sons, died, leaving a will in which he bequeathed all his property to his wife, the defendant Katherine Stevens. Thereafter Mary Stevens, who had reached the age of 96 years, was found to be of unsound mind, and made subject to guardianship.

It is the claim of the plaintiff, John Pels:

That he was induced to sign the deed through the fraudulent machinations of his uncles, and he says in his petition, as a basis for such claim, that Henry Stevens, one of his uncles, falsely and fraudulently said to him:

“That, in order to settle the estate of the grandfather in a proper manner, it was necessary for all of the heirs to sign certain papers; that unless such papers were signed, if any of the heirs should die, the estate of the grandfather could not be closed, and the heirs could not receive their shares until the youngest child of such deceased heir had reached the age of 21 years.”

That, when Henry made this statement, it was not only false, but he knew it was false, and made it to mislead, deceive, and defraud the plaintiff, and to induce him to sign the certain paper which plaintiff has since learned to be a quitclaim deed. That, as a matter of fact, Henry Stevens, Mary Korwes, and Herman Stevens conspired together to cheat this plaintiff out of his interest in said real estate. That Henry was, at the time, assisting his mother, Mary Stevens, who was appointed executrix of the will, in the administration of the estate, and was also testamentary guardian of this plaintiff. That plaintiff never had any experience in executing legal papers. That his Uncle Henry requested him to meet the other heirs (that is, his uncles, his aunt, and his grandmother) in the town of Carroll on the following day for that purpose. That he (the plaintiff), relying upon this statement that it was necessary, in order to settle the estate, that he sign certain papers, appeared with the other parties at the town of Carroll as requested. That the paper was there prepared for his signature and lying on the table. That he signed the same, supposingthat the paper was simply a paper made to facilitate the closing of the estate. That he signed without acquainting himself with the contents, and without having the same read over to, or explained to him, because of the confidential relations existing between him and Henry, and because of the reliance on Henry's statements as to the necessity and effect of signing the papers. That he later learned that the paper was not what he had supposed it to be, and was not as it was represented to him, but was a quitclaim deed of his interest in the 240 acres. That he received no consideration for signing the deed. That he never delivered the deed, as a deed, to any one. That the paper was signed under a mistake of fact as to what the paper was. That it was filed for record, and is now a cloud upon his interest in the 240 acres. That he never saw his grandfather's will, and did not know, and was never told, that he had any interest except in the 109 acres. That he did not know, and was not told, that he had any interest in the 240 acres. That his interest was fraudulently concealed from him. That he had no knowledge, at the time, that the paper so signed was a quitclaim deed of his interest in any property owned by him. That he did not learn that it was a quitclaim deed of his interest in the real estate until the fall of 1911. That in fact, under the terms of the will at the time it was probated, he became vested with an undivided one-fourth interest in this 240 acres of land mentioned in the quitclaim deed, and was entitled, under the will, to a one-fourth interest therein. That Mary Stevens has been in possession of said real estate ever since the death of her husband, Gerhard, holding it as a life tenant.

[1] John Pels, the plaintiff, is the lone witness to sustain the allegations of this petition. Before entering upon a review of his testimony, we must dispose of a matter urged at the threshold. It is said that John Pels was not a competent witness to testify because of the inhibition in “the dead man's statute”; that he is one of the parties to the suit, and Herman is dead, and one of the other parties, Mary Stevens, is insane.

It appears that if any fraud was practiced upon this plaintiff, if he was circumvented and misled into signing something, the contents of which he did not know, if he was fraudulently induced to sign the deed, it was through the instrumentality of Henry, who is now living. The section invoked provides:

“No party to any action or proceeding, nor any person interested in the event thereof, * * * shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of the examination deceased, insane,” etc.

All the transactions, all the personal communications to which this plaintiff testified, that have bearing upon the fraud charged, and which, if accepted, serve as a basis for granting the relief prayed for, were not with the dead party nor with the party now insane. The party with whom the transaction was had is living, and was a witness in this suit. The object and purpose of this statute is to close the mouth of the living, when he is a party interested in a suit, as to any personal transaction or personal communication with the deceased person; this because the deceased person cannot respond, contradict, or combat the statements so made. The theory is that the mouth of the party to the suit is closed by law when death has sealed the lips of his opponent. There is no reason for the application of the rule here. The party by whom the fraud, if any, was perpetrated, the party with whom the transaction testified to was had, is living and able to speak. It is not claimed that the others were present at the time the original statements were made on which the charge is predicated. So far as this record shows, it was made by Henry to the plaintiff, before the meeting in Carroll; that what Henry said was the inducing and moving cause of plaintiff's going to Carroll. It was Henry who closed his mouth to questioning. It was what Henry said that induced his action. The others were present at the consummation of the fraud, and, with knowledge of it, accepted and retained its fruit. The record shows that Henry was familiar with the will, knew its contents, had read it many times, was acquainted with the rights which this plaintiff had in the land, and so were the others, and, we must assume from the record, knew, at the time, that the execution of a quitclaim deed was not necessary in the settlement of the estate. Its only effect was to rob Pels, the plaintiff, of his interest in the land bequeathed to him by his grandfather, and transfer it to the defendants. Pels was a competent witness except for the statute, and the statute itself does not close his mouth. As supporting this proposition, see Johnson v. Townsend, 117 N. C. 338, 23 S. E. 271. It appears that the statute of North Carolina, in respect to this matter, is substantially the same as our own. See, also, Peacock v. Stott, 90 N. C. 518. So we hold that Pels was a competent witness in this case.

[2][3][4] Before reviewing Pels' testimony, we have to say that the record discloses that his mother died while he was yet a baby. He was taken into his grandfather's home and lived with his grandfather until his death. Thereafter he continued to live with his grandmother. He married at the age of 25. We are not advised just how long the grandmother lived with him after that. He had but little education, had nevertraveled, could read and write, but never...