Rowe v. Freeman

• Decision Date: 30 April 1918
• Citation: 89 Or. 428,172 P. 508
• Parties: ROWE v. FREEMAN ET AL.
• Court: Oregon Supreme Court

172 P. 508

89 Or. 428

ROWE v. FREEMAN ET AL.

Supreme Court of Oregon

April 30, 1918

Department 2.

Appeal from Circuit Court, Columbia County; James A. Eakin, Judge.

Suit by Celia M. Rowe against Daniel E. Freeman and Mariah Freeman.From decree for defendants, plaintiff appeals.Affirmed.

This is a suit brought to set aside a deed to 634 acres of land near Scappoose, executed by Bridget M. Freeman in favor of Daniel E. Freeman, February 16, 1912.Plaintiff sues as one of the heirs at law of the grantor, who died intestate October 26 1912.The deed in question reserved to the grantor a life estate in the property.The deed recites a consideration of $1 and other valuable considerations, but it is conceded that no money consideration passed at the time of its execution.At the date of the deed Bridget M. Freeman had three children living; plaintiff, the defendantDaniel E. Freeman, and Carrie Freeman, who died April 9, 1912.She also had a grandson, Lester Dowling, the child of a deceased daughter.The evidence is in conflict as to the age of Bridget M Freeman.Plaintiff testifies that she was about 80, and her testimony is corroborated by that of another witness.Daniel E. Freeman testifies that his mother was 68.Other witnesses think she was about 70.

The property in question is a dairy farm on which Bridget M Freeman and her husband, since deceased, had resided prior to 1891.In that year they moved to Portland, leaving the farm in charge of Daniel E. Freeman and his brother William, who died in 1897.A written lease was given these two sons.William left the farm in 1894, and thereafter the defendantsDaniel E. Freeman and Mariah Freeman, his wife, resided on and farmed the property continuously except from 1898 to 1900.Although no written lease was executed subsequent to that above referred to, Daniel E. Freeman paid his mother a rental of $50 a month.This with a small pension she received was adequate to her necessities.

Plaintiff left the home of her parents in 1900.Within the next two years she wrote two letters from Baker City to the defendantMariah Freeman.She found her way to California and was living at Healdsburg when her mother died in 1912.Except for the two letters above referred to, she had not communicated with the family in any manner since 1900.The testimony as to Lester Dowling is meager, but it sufficiently appears that he also was out of touch with the family.A son, Jack, died in 1911 and after his death Bridget M. Freeman moved from Portland to Scappoose, remaining there until her death.At the date of the deed in question Carrie Freeman was in the last stages of tuberculosis which took her away less than two months thereafter.

The amended complaint on which the case was tried charges that the defendantDaniel E. Freeman procured the execution of the deed in question with intent to deprive plaintiff of a share of the property of her mother; that the deed was prepared at his instance in the absence of his mother; that the reservation of a life estate therein was for the purpose of plausibly representing to his mother that the instrument was only a lease; that he did so represent and that the deed was executed by Bridget M. Freeman in the belief that she was executing a lease; that the deed was executed without independent advice as to its purport and without being read to the grantor, who could neither read nor write; that the name of the grantor was written by the defendantDaniel E Freeman; and that the grantor was induced to make her mark thereon "because of her said confidence and trust in her son and by his undue influence and persuasion upon her."Issue is joined on these allegations.The decree of the lower court was for the defendants and plaintiff appeals.

John Manning and W. T. Slater, both of Portland (Manning, Slater &amp Leonard, of Portland, on the brief), for appellant.W. A. Harris, of St. Helens, and W. M. Cake, of Portland (Cake & Cake, of Portland, on the brief), for respondents.

McCAMANT, J.(after stating the facts as above).

It appears that Bridget M. Freeman was illiterate, but the preponderance of the evidence is that she was abundantly competent and that she had a mind of her own.She was in normal health when the deed was executed; she died of pneumonia eight months thereafter.

Grant Watts, the notary public who took the acknowledgment of the deed, testifies that he had previously advised Mrs. Freeman to execute a deed to this effect; that on the day when the deed was executed Mrs. Freeman was in her right mind and seemed to know what she was doing.He further testifies that he read the deed, told Mrs. Freeman that "it was a deed with a life lease in it;" that he(Watts) wrote Mrs. Freeman's name as a signature and made her mark, while she held the top of the pen.

E. W. Price, one of the subscribing witnesses, corroborates this testimony in part.He says, "They told me it was a deed to Dan;" and that this remark was made in the presence of Mrs. Freeman.This was the only real estate which the grantor owned and she must have understood the remark as applicable to the property in question.

A. Bonser testifies that in April, 1912, Mrs. Freeman told him she had conveyed the property to Dan.On May 21, 1912, Mrs. Freeman joined with the defendants in a mortgage of the property to the Investors' Mortgage Security Company, Limited.O. M. Washburn, who took her acknowledgment of the mortgage, explained to her that her signature was necessary because of her interest in the place.Mr. Washburn testifies that Mrs. Freeman said she understood the transaction.

On the other hand, Mrs. H. A. Ehlers testifies that in August, 1912, Mrs. Freeman told her, "Dan has no deed; he has only a lease."Whatever the explanation of this testimony, the preponderance of the evidence is to the effect that Mrs. Freeman understood the purport of her deed when she executed it, and that she realized several months thereafter that her son Daniel E. had a title to the property.

There is evidence that Mrs. Freeman was dissatisfied with the conduct of the defendant Daniel E., but it nevertheless appears that in the last year of her life he was the only member of the family who saw anything of Mrs. Freeman, except only Carrie Freeman.This daughter died six months before her mother, after a lingering illness, during the latter part of which she was helpless.Mrs. Freeman seems to have doubted whether plaintiff was still alive.In a letter written by plaintiff after the death of her mothershe admits that she was at fault in failing to write her mother during the last 12 years of the latter's life.In another letter plaintiff intimates that she had been advised of the death of her brother Jack, who died in 1911, and that of her sister Carrie, who died in April, 1912.Plaintiff sent no message of condolence to her mother on either of these occasions.The excuses offered for this long silence are that Mrs. Freeman was illiterate, and that plaintiff's relations with her sister Carrie were not cordial.There is evidence that Mrs. Freeman did not regard these excuses as adequate.

On January 17, 1911, Mrs. Freeman gave a power of attorney to Daniel E. Freeman.This instrument was recorded in the records of Columbia countyJanuary 25, 1911.On the advice of counsel who drew the deed in controversy, the power was revoked by Mrs. Freeman immediately prior to the execution of the deed.The powers granted by this instrument were very broad, but it appears by uncontroverted testimony that it was executed in order to empower Daniel E. Freeman to withdraw a deed which his mother had left in escrow with a Portland bank at a time when the sale of the property was contemplated.There is also some testimony that the power of attorney was given with a view to "some road matters down on the farm."This last circumstance explains the fact that the power of attorney was placed of record.It does not appear that the power of attorney was used except for the purpose of withdrawing the deed from the bank.

There is testimony to the effect that Daniel E. Freeman, prior to the bringing of this suit, offered plaintiff $10,000 for her interest in the property if she would wait till he could sell the property.This was in the nature of a compromise offer, which was not accepted.Apart from the fact that Daniel E. Freeman denies making the offer, the circumstance is unimportant.This denial is in conflict with the testimony of five witnesses, and we cannot doubt that the fact is as contended by plaintiff.In this and in other respects the testimony of Daniel E. Freeman is unsatisfactory, but the controlling facts in the case are established by testimony other than that of this defendant.Some weight must be given to the fact that the lower court which saw the witnesses determined the issues in favor of the defendants.Scott v. Hubbard,67 Or. 498, 505, 136 P. 653;Hurlburt v. Morris,68 Or. 259, 272, 135 P. 531;Goff v. Kelsey,78 Or. 337, 348, 153 P. 103;Shane v. Gordon,84 Or. 627, 630, 165 P. 1167;ker v. Kirkpatrick, 86 Or. 677, 679, 169 P. 117.

It is contended by plaintiff that a relation of trust and confidence subsisted between Daniel E. Freeman and his mother, and that therefore the burden of proof devolved upon him to sustain the deed made in his favor.It is also contended that in order to sustain the deed it is essential for him to show that in executing the deed his mother acted pursuant to independent advice.If a fiduciary relation existed as contended, the burden of proof devolved on the defendants to sustain the transaction.Jenkins v Jenkins,66 Or. 12, 17, 132 P. 542;Clough v. Dawson,69 Or. 52, 60, 133 P. 345, 138 P. 233;Baber v. Caples,71 Or. 212, 224, 138 P. 472, Ann. Cas. 1916C, 1025.Plaintiff...