Strom v. Felton, 2738

• Decision Date: 30 October 1956
• Docket Number: No. 2738,2738
• Parties: Carl L. STROM, Plaintiff and Appellant, v. Anna K. FELTON, Defendant and Respondent.
• Court: Wyoming Supreme Court

Page 917

302 P.2d 917

76 Wyo. 370

Carl L. STROM, Plaintiff and Appellant, v. Anna K. FELTON, Defendant and Respondent.

No. 2738.

Supreme Court of Wyoming.

Oct. 30, 1956.

G. R. McConnell, Walter Scott, Laramie, for appellant.

Greenwood, Ferrall & Bloomfield, C. N. Bloomfield, Jr., Cheyenne, Sullivan & Sullivan Laramie, for respondent.

BLUME, Chief Justice.

This is an action commenced on August 18, 1954, by Carl L. Strom, as plaintiff, against Anna K. Felton, as defendant, to have the deeds to the latter to certain property in Laramie, Wyoming, set aside for the reasons hereinafter discussed. The relief prayed by the plaintiff was denied by the trial court, and from a judgment in favor of the defendant, the plaintiff has appealed. The parties will generally be mentioned as in the court below.

The plaintiff filed an amended petition, and set forth three causes of action. The brief of the defendant herein contains a succinct, but quite accurate, statement of the allegations in the petition, and we shall largely follow it, making a few changes.

In the first cause of action at paragraphs 1, 2 and 3, the plaintiff alleged, in substance, that he and Ina R. Strom were married on April 11, 1949, and were husband and wife until Ina R. Strom's death August 1, 1954. That on May 12, 1954, Ina R. Strom owned, individually, the west 60 feet of Lot 8, Block 215, in the Original Town of Laramie, Wyoming; and that plaintiff and Ina R. Strom owned as tenants by the entireties the center 36 feet East of the West 60 feet in the same lot and block. Defendant admitted these allegations.

In paragraph 4, plaintiff alleged that on May 12, 1954, the defendant procured Ina R. Strom to execute and deliver to defendant deeds of conveyance to the two above described parcels of land, together with a bill of sale to certain personal property owned by Ina R. Strom. That no consideration was paid by defendant for either the real or personal property, and defendant knew Ina R. Strom was mentally incapable of transacting business or comprehending the nature or effect of signing said deeds and bill of sale. The defendant, with the intention of defrauding said Ina R. Strom accepted said deeds and bill of sale. The defendant admitted receiving the deeds and bill of sale, and denied all other allegations in paragraph 4.

In paragraph 5, plaintiff alleged and defendant admitted she was in possession of the deeded lands claiming to be the exclusive owner, and refused to permit plaintiff to have any part thereof or to share with the plaintiff the rents and profits from said lands. The plaintiff alleged and defendant denied that the monthly rentals accruing from said real property totaled $215.

In paragraph 6, plaintiff alleged defendant had removed certain personal property of Ina R. Strom out of the jurisdiction of the court subsequent to the plaintiff's filing his original petition herein, and would continue to remove said property. Plaintiff, on belief, alleged that defendant would convey away said real property. That defendant should be restrained from removing the personal property or from conveying or encumbering the real property. Defendant admitted she had removed certain personal property after the original petition was filed, but had not removed any property subsequent to being served with a restraining order.

In paragraph 7, plaintiff alleged and defendant denied that he was the sole owner in equity of the real and personal property, and entitled to have the same set over to him by reason of a will executed May 12, 1949, by Ina R. Strom.

In the second cause of action in paragraph 1, the plaintiff incorporated paragraphs 1, 2, 3, 5, 6, and 7 of the first cause of action to which the defendant made the same answer as she made to the first cause of action.

In paragraph 2, plaintiff re-alleged the allegations of paragraph 4 of the first cause of action, except for the allegation that defendant paid no consideration whatever for said real and personal property. Defendant made the same answer to the allegations of paragraph 2 that she made to paragraph 4 of the first cause of action.

In paragraph 3, plaintiff alleged and defendant denied that defendant promised Ina R. Strom to pay all bills and obligations, secured and unsecured, incurred by her prior to May 12, 1954, and all obligations incurred subsequently for the treatment of cancer, setting forth a number of such obligations amounting to more than $5,000; that defendant promised to support Ina R. Strom for the remainder of her life; that defendant abandoned said Ina R. Strom immediately after the deeds and bill of sale were executed and delivered to defendant, and did not pay any of the bills and obligations of Ina R. Strom as promised.

In the third cause of action in paragraph 1, plaintiff realleged by reference his entire first cause of action to which defendant made the same answer.

In paragraph 2, plaintiff alleged he loaned Ina R. Strom $1,000 on or about February 2, 1949, and another loan of $830 on or about May 12, 1949. That in addition, plaintiff had performed work and labor upon the real property here involved in the reasonable amount of $1,000. Defendant denied each and every allegation.

In paragraph 3, plaintiff alleged the conveyances to defendant by Ina R. Strom were fraudulent as to plaintiff who was a creditor of Ina R. Strom at the time said conveyances were made. Defendant denied each and every allegation.

In each of the foregoing three causes of action, the plaintiff prayed that said deeds of conveyances and bill of sale be delivered up to plaintiff and canceled; that defendant render to plaintiff an accounting of all rents and profits accruing from said real property, together with interest thereon, and that defendant be restrained by order of the court from removing any personal property from the court's jurisdiction and further restrained from either conveying or encumbering the real property.

The plaintiff in his reply denied each and every allegation of new matter alleged by the defendant.

At the close of the trial the court found generally in favor of the defendant, and decreed that plaintiff take nothing by reason of his petition.

We may here mention a few general facts. The plaintiff and Mrs. Strom were married in 1949. Prior to the marriage the plaintiff apparently had lived in California, but moved to Laramie thereafter. The parties did not get along any too well after the first year, and that was perhaps partially true because plaintiff did not give his wife much money for support--some $35 or $40 per month. That seems to have been due because plaintiff claimed that Mrs. Strom had a greater income than he had. The income of Mrs. Strom was not great. While plaintiff claims that it was as much as $250 per month, there is testimony in the record that it was not more than about $140 per month. Mrs. Strom was about seventy-four years of age when she died about August 1, 1954. The age of the plaintiff is not shown.

Early in the year 1954 Mrs. Strom was informed, when in a hospital in Denver, that she had malignant cancer. It is not clear how long she remained in Denver. In the late winter or early spring of 1954, she moved back to her home in Laramie, Wyoming. While still in Denver she tried to get her stepdaughter to take care of her. But the latter was unable to do so, since she had a family, including children of her own. Mrs. Strom then tried to get Mrs. Munn--apparently a nurse--to take care of her. Mrs. Munn was unable to do so on account of her own family. Mrs. Strom then engaged the defendant--apparently a nurse--to take care of her, including nursing, cooking, and doing other things for her. Defendant, living in Lincoln, Nebraska, was apparently an old friend of Mrs. Strom, for the former visited the latter in 1952. There is some testimony in the record that the defendant waited upon Mrs. Strom even while the latter was in Denver, but the extent thereof is indefinite. In any event the defendant took care of her after Mrs. Strom moved back to Laramie, the length of time again being indefinite. It was probably from about March 1, 1954, or a little before, up to about the middle of June or some days thereafter. In the latter part of June 1954 defendant left for Lincoln, Nebraska, to attend to some business and did not return to Laramie until after the death of Mrs. Strom.

About March 6, 1954, Mrs. Strom gave a bill of sale to defendant for 'all furniture and personal articles.' On March 19, 1954, Mrs. Strom and her husband borrowed $3,000 from the First National Bank of Laramie, Wyoming, secured by a mortgage on the west 60 feet of the property in controversy. That mortgage was placed on record on March 22, 1954. On May 12, 1954, Mrs. Strom for 'a nominal consideration' gave a warranty deed to defendant for the 'West sixty feet of Lot eight, Block two hundred fifteen, Old Town, City of Laramie, Albany County, Wyoming. Reserving to the grantor a life estate in the above described premises together with a right of possession, use and enjoyment thereof, including the rents and profits, so long as the grantor shall live.' On the same day Mrs. Strom gave to defendant a quitclaim deed--all her right, title and interest--to 'Thirty-six feet of Lot eight, in Block two hundred fifteen, directly east of the west sixty feet of said lot 8 in Block two hundred fifteen, Old Town, City of Laramie, County of Albany, Wyoming.' These are the deeds in controversy herein, and are sought to be set aside for the reasons hereafter discussed.

Effect of Motion to Dismiss.

At the close of plaintiff's case, the defendant moved that the plaintiff's petition be dismissed on the ground that there was no evidence proving the issues in the case. The motion was overruled. Counsel for plaintiff now say, notwithstanding that the motion was overruled, that such motion admits the truth of all the testimony of the plaintiff's witnesses and they cite us to Hawkey...