Pulsifer v. Paddock

• Decision Date: 10 May 1890
• Citation: 43 Kan. 718,23 P. 1049
• Parties: MARY J. PADDOCK et al. v. PARK B. PULSIFER, as Administrator with will annexed of David Robertson, deceased, et al
• Court: Kansas Supreme Court

23 P. 1049

43 Kan. 718

MARY J. PADDOCK et al. v. PARK B. PULSIFER, as Administrator with will annexed of David Robertson, deceased, et al

Supreme Court of Kansas

May 10, 1890

Error from Cloud District Court.

ON the 11th day of February, 1886, Park B. Pulsifer, as administrator with the will annexed of David Robertson deceased, John Robertson, Isabel Temple and Mattie Ellis filed their petition against Mary J. Paddock, and Alice Bourgeois, Anna Mealy, Margaret Reid, David Robertson and Jessie Snowey, which, omitting caption, is as follows:

"Plaintiffs say: That on the 11th day of February, 1886, the plaintiff Park B. Pulsifer, was duly appointed and qualified, and letters of administration were granted to him, as administrator with the will annexed of the estate of David Robertson, theretofore deceased, by the probate court of Cloud county, Kansas. That said David Robertson was the owner, during his lifetime, of the northwest quarter of section 32, township 5 south, range 1 west, in Cloud county Kansas; that on or about the 25th day of November, 1885, the defendant, Mary J. Paddock, by fraud, misrepresentation undue influence and deceit, obtained from said David Robertson what purports to be a warranty deed of the aforesaid premises to her; that at the time of the execution of the pretended deed as aforesaid, said David Robertson was in failing health of body, and was in such a feeble and weak state of mind as to be utterly incapable of transacting business, and that said pretended deed was obtained without any consideration whatever being paid therefor, and without the consent of said David Robertson. On or about the 5th day of February, 1886, defendant Mary J. Paddock and Thomas Paddock her husband pretended to convey to defendant Alice Bourgeois the aforesaid land by deed, recorded in the office of the register of deeds of said county on February 8, 1886, but the plaintiffs allege that said Alice Bourgeois took said deed without any consideration whatever being paid by her or anyone for her, well knowing all the facts herein set forth as to the invalidity of the title of the defendant Mary J. Paddock, and such pretended sale and conveyance to said Alice J. Paddock is a sham, intended only for the purpose of aiding said Mary J. Paddock to defraud the plaintiffs out of their rights in the aforesaid land; that said David Robertson died on or about the 10th day of January, 1886, after having made a will which was duly probated by the probate judge of said county on the 10th day of February, 1886, and in which it is provided that the executor thereof shall sell all of the real estate of the defendant and convert the same into money.

"Wherefore, plaintiffs pray judgment that said pretended deed be set aside; and for such other and further relief as they may be entitled to."

On March 16, 1886, the defendants filed an answer containing a general denial only. Trial was had at the October term of the court for 1887, without a jury. The court made a general finding in favor of the plaintiffs that the deed from David Robertson to Mary J. Paddock, and the deed from Mary J. Paddock and Thomas Paddock to Alice Bourgeois, for the land in controversy, be annulled, canceled, and held for naught. Subsequently, judgment was rendered in favor of the plaintiffs and against the defendants upon the general finding. The defendants, Mary J. Paddock and Alice Bourgeois, excepted, and bring the case here.

Judgment affirmed.

B. R. Anderson, and J. W. Sheafor, for plaintiffs in error.

L. J. Crans, and Kennett & Peck, for defendants in error; Hugh Alexander, for defendant in error Pulsifer.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

David Robertson died at the home of his married daughter, Mrs. Mary J. Paddock, in Cloud county, in this state, on January 10, 1886, aged about seventy. His wife died many years before. He had been suffering from paralysis nearly two years. He left surviving him several children. At the time of his death he owned $ 1,100 of notes. A few weeks before his death he had the legal title to and was in the possession of the northwest quarter of section 32, township 5, range 1, in Cloud county. Robertson executed a will on the 22d day of October, 1883. It was admitted to probate on the 9th of February, 1886. He directed in his will that his real and personal property be converted into money, and, after the payment of his funeral charges, expenses, etc., the proceeds to be divided among his children, share and share alike, with the exception that his oldest daughter, Mrs. Isabel Temple, should receive $ 400 in addition to her share, and the grandson, David Reid, should receive $ 120. During the years of 1883, 1884, and a part of 1885, he lived in Cloud county most of the time, with Mrs. Isabel Temple, as one of the family. Sometime in the summer or fall of 1885 he left Mrs. Temple's and went to Mrs. Mary J. Paddock's. Before leaving Mrs. Temple's, he told her he was going down to his farm and set out some shade trees and stay with his daughter Mary. Early in November, 1885, he was taken sick, and never recovered. Mrs. Temple called at her sister's every two or three weeks to see her father. When she called he was very feeble. He could not work, and was not able to help or take care of himself. During his sickness it was thought necessary on account of his sufferings to administer to him large quantities of whisky and morphine. On the 25th of November, 1885, David Robertson executed to his daughter Mrs. Mary J. Paddock a deed for the tract of land in dispute, and on the 5th of February, 1886, Mrs. Paddock and her husband conveyed the land to her daughter, Mrs. Alice Bourgeois. The land is worth from $ 4,000 to $ 5,000. No consideration was paid by Mrs. Paddock to her father for the conveyance. When Mrs. Bourgeois received the deed, she agreed to convey the land to any person her mother should request. In order that it might appear that a money consideration passed for the deed from Mrs. Paddock to Mrs. Bourgeois, Dr. Bourgeois, her husband, obtained the use of $ 500 for a few days from a bank. This was handed to Mrs. Paddock, but soon after returned to Dr. Bourgeois and by him to the bank again. Mrs. Paddock claims that she sold the land to Mrs. Bourgeois for $ 2,600 and was paid that sum for it, but upon the finding of the court we must assume that this is not true.

In the brief for defendants below it seems to be conceded that Mrs Bourgeois was not a bona fide purchaser of the land. The brief states: "If it is a fact that Mrs. Paddock, after being frightened by the houndings of these people, at last made a sham sale to Mrs. Bourgeois of the farm, this is an evidence of weakness rather than of fraud." This action was brought to set aside and cancel the two deeds--one from David Robertson to his daughter Mrs. Mary J. Paddock, and the other from Mrs. Paddock and her husband to Mrs. Bourgeois. The contention is, that there was no evidence before the trial court tending to show the deed to Mrs. Paddock was procured by...