Sutherland State Bank v. Furgason

• Decision Date: 20 January 1922
• Docket Number: 33918
• Citation: 186 N.W. 200,192 Iowa 1295
• Parties: SUTHERLAND STATE BANK, Appellee, v. MAUDE C. FURGASON et al., Appellants
• Court: Iowa Supreme Court

186 N.W. 200

192 Iowa 1295

SUTHERLAND STATE BANK, Appellee, v. MAUDE C. FURGASON et al., Appellants

No. 33918

Supreme Court of Iowa, Des Moines

January 20, 1922

Appeal from Cherokee District Court.--C. C. BRADLEY, Judge.

SUIT in equity, for cancellation of a deed made by Jane A. Bailey to Jennie E. McCulla and Maude C. Furgason, appellants, of a quarter section of land, on the grounds that the grantor was mentally incompetent to execute the deed; that the deed was secured by undue influence; and that the deed was never delivered. The facts appear in the opinion. Decree was entered, canceling the deed. The grantees in the deed appeal.

Reversed.

Molyneux & Maher and C. D. Meloy, for appellants.

Walter McCulla and Herrick & Herrick, for appellee.

FAVILLE J. STEVENS, C. J., EVANS and ARTHUR, JJ., concur.

OPINION

FAVILLE, J.

I.

The questions presented for our determination are largely questions of fact. The law in cases of this character is well established. We are confronted with the not unusual situation where an attempt is made to set aside a deed executed by an elderly person, on the familiar twofold ground of an alleged want of mental capacity to execute the deed and a claim of undue influence. The action is brought by a guardian. The record discloses that Cyrenus Bailey and his wife, Jane A Bailey, lived on a farm in Cherokee County, Iowa, and were the parents of seven children. One of the Bailey daughters, Emma, married a man by the name of Hinds, and lived in the state of Texas. Emma Hinds died, leaving surviving her two daughters, who continued for some time to live with their father, but finally, at the solicitation of the elder Bailey, came to Cherokee County, Iowa, to live with their grandparents on the farm in question. These daughters have each since married, and are the defendants Maude C. Furgason and Jennie E. McCulla. While they were living on the place with their grandparents, Jennie did most of the housework. Maude taught school a portion of the time, and helped with the housework when not teaching, and when she was teaching, she paid her grandmother for her board, and Jennie was paid $ 2.00 a week for her services. Maude married in 1900, and moved from the farm. Jennie continued to live with the old people thereafter, and was subsequently married, and has continued to reside on the farm ever since. The old gentleman died in 1905; and after his death, the widow left the farm and went to live with some of her children, residing part of the time with a son, Asa; and at the time of the transactions involved in this suit, she was living with her daughter, Mrs. Flinders.

On March 10, 1898, Cyrenus Bailey executed a deed to the quarter section of land in controversy to his wife, Jane A. Bailey. This deed was not recorded until the 25th day of August, 1919. On October 13, 1904, Jane A. Bailey made a will, by the terms of which she provided for the payment of $ 1,000 to the granddaughter, Maude Furgason, and made the payment of the same a lien upon the real estate in controversy. She devised the said real estate to Jennie McCulla, subject to the dower interest of her husband, in the event that he should survive her. During the summer of 1919, there were several conversations between Mr. and Mrs. Furgason and Mr. and Mrs. McCulla in regard to the property. McCulla claimed to Furgason that he could hold the property by adverse possession, and Furgason learned through Asa Bailey, son of Cyrenus Bailey, that a will had been made by Mrs. Bailey, by the terms of which Jennie was to get the farm, and Maude was to get $ 1,000. On the 30th day of August, 1919, Furgason and his wife went to Sutherland, for the purpose of seeing Mrs. Bailey. At that time, the old lady was living there with her daughter, Mrs. Flinders. Furgason informed them that he and his wife came for the purpose of talking over affairs in regard to the Bailey property, and Mrs. Flinders said that she would rather that the matter would not be discussed until the brother, Asa, could get there. She immediately called Asa over the telephone, and he came down to the Flinders house. This was in the forenoon. Furgason and his wife went home with Asa to dinner. There was little conversation in the presence of Mrs. Bailey in the forenoon. In the afternoon, the two Furgasons and Asa Bailey returned to the Flinders home, and in the meantime, Asa had telephoned to the bank for the cashier, Mr. Bark, and requested him to come to the Flinders home. Jennie McCulla and her husband were also sent for, and they came to the conference. It was at this conference that the deed in question was executed. Various parties who were present at the time were witnesses upon the trial.

Mrs. Flinders, a witness for the plaintiff, testified in regard to the transaction. She stated that Maude said to Mrs. Bailey:

"Now, grandmother, is it right for Jennie to have that farm? It is your farm. Is it right for Jennie to have the farm, and me just $ 1,000?"

She testified that she did not remember what her mother said in response to this. She also testified that Mr. Furgason was insisting that Asa Bailey and the banker, Mr. Bark, should settle it; that he wanted it settled.

With regard to the threat of a lawsuit, Mrs. Flinders testified, referring to Mr. Furgason:

"He said that afternoon that, if it wasn't settled, that he was going to bring an action against Asa, to find out where father's property had gone. I do not know whether it was in her presence--right in front of her; but she was there."

The banker, Jordan, was called as a witness by the plaintiff, and testified that, when he went to the house on the day in question, Mrs. Bailey spoke to him when he went in. He did not remember what she said. He said:

"I don't remember who finally stated what was wanted of me that day. I understood it was her request the deed was to be drawn. I don't remember who told me. I don't know who asked me. I don't remember whether Mr. Furgason or Mrs. Furgason told me the object of the visit."

"Q. Did Mrs. Bailey make any statement, when you asked her what you were there for, that you would have to inquire of someone else, or any words to that effect? A. Something was said to that effect, but I don't remember exactly what it was. Q. Well, approximately, as near as you can remember, what was said? A. It seems to me it was something on this order,--'You will have to ask the others what was wanted;' but I don't think those were exactly the words, but something on that line."

This witness further testified:

"I don't remember that Maude Furgason spoke up and said, 'Grandma wants to deed this place to Jennie and me, each half,' or something like that, and that I then said to her, 'Is that right, Grandma?' * * * I am quite sure I did read the deed to her, of course. Yes, I took her acknowledgment, and I was very particular to ask her if it was her own voluntary act and deed. She said, 'Yes.' * * * I was not at the house over half an hour on the day the deed was signed. During that period, I did not hear Lew Furgason or his wife, Maude Furgason, make any threats to Grandma Bailey as to what they would do if she didn't give them the deed to the land. I did not hear them make the threats about lawsuits to anyone else there in the house, nor I did not hear them make any threats in her presence as to a suit against Asa Bailey or Mrs. Flinders. Nothing of a threatening nature was said in my presence in the house, either before or after she signed that deed."

Furgason stated to Bark and Asa Bailey, outside the house:

"I will fight you until hell freezes over. I am telling you this so you will have no misunderstanding."

This statement was not made in the presence of Mrs. Bailey, and there is no evidence that she ever heard of it.

The witness Shumway, who was in no way interested in the transaction, and was called in as a witness to the deed, testified in regard to what took place at the time. He said:

"The first I remember of the conversation there, Mr. Jordan says to Mrs. Bailey, 'Did you send for me?' And she turned him off some way,--joshed with him a little; and I think he asked her the second time if she had sent for him, and what she wanted. He asked her this question, and she put him off the first time, and the second time I think she made the remark she didn't know, and * * * Mrs. Flinders says 'Yes, you do, mother, he was called here to execute a deed wherein you convey your home property down there where you used to live, and the girls and the children lived with you, to these girls, Maude and Jennie; and you are to sign and execute a deed conveying this property to these girls equally.' And then she says, 'Lew, you better state your case,' and Lew said he didn't feel like doing that. Mrs. Flinders said this,--she just said: 'Yes, you do, mother, it is to draw up a deed for you to sign.' It was Mrs. Flinders said to Mr. Furgason, 'You had better state your case.' I think Mr. Furgason said he thought it would be more in place for one of the girls to do that, and Maude, his wife, started in, and she was confused a little, and Mrs. Flinders spoke up, and she says: 'Jennie, maybe you better do that; you are a better talker.' And then Jennie stated the case very clearly. Jennie said she supposed she might as well go back to the time that they were both girls at the Bailey home on the farm, and she said they came there to make their home there, and after they had been there for a time, it was the general talk of the old folks, and among all of them, that in time that place was to be divided equally among the girls. She said that was the understanding, and she thought that was Maude's understanding. She said she never knew anything different till she took a trip out west, and an...