Sampson v. Sissel

• Decision Date: 29 June 1949
• Docket Number: 32633.
• Citation: 38 N.W.2d 341,151 Neb. 521
• Parties: SAMPSON v. SISSEL.
• Court: Nebraska Supreme Court

38 N.W.2d 341

151 Neb. 521

SAMPSON v. SISSEL.

No. 32633.

Supreme Court of Nebraska

June 29, 1949

Syllabus by the Court.

1. In an equity action where decree is rendered in favor of a defendant at the close of the evidence of a plaintiff every fact in evidence and every reasonable inference deducible therefrom must on appeal be resolved in favor of the plaintiff.

2. By statute it is required that consideration shall be set forth in a deed of conveyance of real estate but when title is attacked on the ground of want of consideration no burden devolves upon the grantee to assume the burden of proving consideration.

3. When an attack is made on a deed on the ground of lack of consideration the general rule is that the statement of consideration is prima facie evidence which may be rebutted.

4. As a general rule a delivered deed passes title even if there is no consideration.

5. A deed without consideration does not protect a title obtained by fraud or undue influence or a transfer in fraud of creditors.

6. The possession of a deed or other instrument of conveyance by a grantee raises a presumption that the instrument was properly delivered and the burden of proof is upon him who disputes it to overcome the presumption.

7. In an action to set aside an instrument on the ground of undue influence the burden is on the plaintiff to establish that the grantor was subject to such influence; that the opportunity to exercise it existed; that there was a disposition to exercise it; and that the result appears to be the effect of such influence.

8. Undue influence exercised by anyone, whether he or another gains by its exercise, renders the instrument thus procured worthless.

9. Before it may be said that an instrument was procured by undue influence the evidence must be sufficient to show that the grantor was capable of having his free agency destroyed and that he was capable of being constrained to depart from his own judgment and will and to follow the will of another.

10. In an action to set aside an instrument on the ground of undue influence testimony of third persons as to conversations had with a deceased grantor long after the execution of the instrument of grant relating to the grantor's proposed disposition of his estate is inadmissible as hearsay.

Beynon Greenamyre & Hecht, Lincoln, Denney & Denney Fairbury, for appellant.

George A Skultety, Fairbury, Van Pelt, Marti & O'Gara, Lincoln, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER Justice.

This action as it finally came to trial was by E. A. Stark, administrator with the will annexed of the estate of Frank J. Sampson, deceased, Frank R. Sampson, and Frances Sampson, plaintiffs, appellants here, against Wilma J. Sissel, Galen Sissel, Reba Meyer, Louis Meyer, and Olive W. True, defendants, appellees here. The action was for a decree setting aside a deed and a bill of sale from Frank J. Sampson, deceased, to Wilma J. Sissel. The action was tried on a second amended petition, answer of defendants, and a reply by plaintiffs.

When the case came on for trial the defendants Reba Meyer, Louis Meyer, and Olive W. True disclaimed any interest in the action or the res thereof and moved for a dismissal as to them. The motion was sustained and the action as to them dismissed. At the conclusion of the evidence adduced by plaintiffs on motion of the remaining defendants a decree was entered dismissing the petition as to said defendants for the reason that the evidence was insufficient to sustain a cause of action. A motion for new trial was filed and overruled. From the order overruling the motion for new trial, the decree, and the order dismissing the action as to Reba Meyer, Louis Meyer, and Olive W. True the plaintiffs have appealed.

By the petition it was declared that Frank J. Sampson died on December 25, 1946, at the age of 79 years, owning 80 acres of land adjoining the city of Fairbury, Nebraska; that after his death a deed and a bill of sale, both dated September 2, 1942, were filed of record in Jefferson County, purporting to have been signed by the said Frank. J. Sampson and purporting to convey the 80 acres of land and certain personal property to the defendant Wilma J. Sissel; that the deed and bill of sale were procured by fraud and undue influence of Reba Meyer, Louis Meyer, Olive W. True, and Wilma J. Sissel; that Wilma J. Sissel is the daughter of Reba Meyer and Louis Meyer and Galen Sissel is her husband; that there was no delivery of the deed; and that there was no consideration therefor.

The answer in substance alleged the execution and delivery of the deed and bill of sale and that the consideration was an oral agreement by Wilma J. Sissel that one Howard James was to have the use of the house and other buildings on the land during his life and that he was to be given 6 cows and 100 chickens or that he was to be allowed to keep such cows and chickens on the land as he had not exceeding the number mentioned. In addition to these allegations the answer contained a general denial. The allegations of the answer were by reply denied.

The assignments of error are numerous. The one of controlling importance raises the question of whether or not the court erred in decreeing a dismissal at the conclusion of the evidence of plaintiffs.

Since the decree was rendered in favor of defendants at the close of plaintiffs' evidence every fact in evidence and every inference reasonably deducible from the facts in evidence must be resolved in favor of plaintiffs. 30 C.J.S., Equity, s. 506, p. 902.

It becomes necessary therefore to examine the facts and the reasonable inferences to be drawn therefrom to ascertain whether or not it can be said that the elements necessary to sustain a cause of action have been established.

There is no evidence whatever in the record pertaining to the execution of the two instruments except that which appears on their face. One their face they are regular in form and no effort was made to prove irregularity or that they were not executed by the deceased, Frank J. Sampson, and properly witnessed at the time indicated by the instruments. Also there is no evidence with regard to delivery.

The pertinent circumstances testified to were that Frank J. Sampson, in advanced years, lived alone or with Howard James on his farm and a short distance away lived Reba and Louis Meyer; that the Meyers were frequently at his place and in his company and performed for him neighborly service; that at the time the instruments purport to have been executed Wilma J. Sissel was away from the Meyer home and had no direct contact with Frank J. Sampson; that Frank J. Sampson had some kind of a business transaction or transactions with Reba Meyer and Louis Meyer which after the date of the deed and bill of sale culminated in a lawsuit which was not tried but was settled; that at all times up to the date of his death Frank J. Sampson to the extent that he was able operated the farm and his interests thereon as his own; that Wilma J. Sissel neither exercised nor attempted to exercise any control over the farm or the personal property mentioned in the bill of sale until after the death of Frank J. Sampson; that Frank J. Sampson was on terms of cordiality with Frank R. Sampson, a nephew, and Frances Sampson, a sister-in-law, and that he looked to and obtained from them needed care and kind attention in the last days of his life; and that on January 3, 1945, Frank J. Sampson made a will by the terms of which he gave his entire estate to Reuben Sampson, Howard James, and Frank R. Sampson. The face of the will indicates that it was made January 3, 1934, but this is clearly erroneous.

On the question of susceptibility to influence the following appears in the testimony of Frances Sampson: 'Q What can you say, Mrs. Sampson, as to whether or not he was a man that would be influenced by others? * * * A I hardly know how to say it. He would pretend, but when it came to a showdown he used his own judgment, of course. * * * Q Was he mentally alert? A Yes, he always knew. Q He always knew? A While he was there with me. Q Up to the very day of his death you feel he was mentally competent, do you? A Yes, I do. Q And, as you say, he may have tried to please people from time to time, but when it came to a showdown he knew what he wanted and stuck to it? A He did things the way he thought.' Nora S. Wade said: 'Q Now as you observed Mr. Sampson, your cousin, did you have occasion to observe any occasions in which he appeared to be influenced by other people in his actions? A He was always influenced by his mother; as long as his mother lived he did just about as his mother ordered him to do. Q And would you say he was a man that was subject to influence by other people? * * * A Yes sir. * * * Q And he was always mentally alert, wasn't he? Do you understand my question? A No sir. Q He always knew what he was doing, didn't he? A Well, I suppose he did.' Frank R. Sampson said: 'Q Now what was, during this period of time that you observed him, what did you observe as to his disposition, especially with reference to being subject to influence by the suggestions of others? A Well, I would say he was feeble and that he could be influenced.'

On the question of consideration the only evidence offered by plaintiffs was the following from a deposition given by Wilma J. Sissel which was received as an admission or admissions against interest: 'Q Mrs. Sissel, did you pay any money to Frank J. Sampson for the deed and bill of sale to his land and property? A No. * * * Q Did you render any services or perform any work for Frank J. Sampson in exchange for this deed and bill of sale? A What do you mean by 'serv...