16 S.D. 185 | S.D. | 1902
On the 3d day of March, 1898, for 1 ‘one dollar, and the further consideration of the grantor’s care and support throughout her natural life,” Martje Bonneman Pott by warranty deed conveyed her farm, at the time worth about $3,000, to a son, the defendant, John Pott; and this action in equity is by four of her remaining children and two grand children to set aside such deed on the ground that the same was procured by fraud and duress, and is wholly without consideration. Pursuant to the direction of the grantor, expressed in her deed, that instrument was deposited in a certain bank, with the specific direction that the same be delivered to the grantee immediately upon her death; and this was done, and the deed placed of record. It is conceded that Mrs. Pott died on the 6th day of April, 1900; and at the conclusion of all the evidence, the following questions were submitted to a jury, and its findings thereon were adopted by the court: ‘‘First Question. Did Martje Bonneman Pott on March 3, 1898, have sufficient mental capacity to understand that she was making a deed to transfer the land in question to her son John Pott, and did she understand that she was then making such deed? Answer. Yes, Second Question. Was the making of the deed in question the free, intelligent, and voluntary act of Martje Bonneman Pott? Answer. Yes. Third Question. Did the defendant, John Pott, by persuasion, or importunities, or by reason of an ascendancy or influence over her will and conduct so strong as to control her acts and will, induce Martje Bonneman Pott to execute the deed to him? Answer. No.” There was a decree quieting the title to the premises in the defendant, and plaintiffs appeal. Mrs. Pott was a woman over 70 years of age, and,' with the exception of a
While the testimony of the various appellants tends to show that, for two or three years prior to her death Mrs. Pott was very feeble both in mind and body, and, being a native of Holland, was unable to speak or understand the English language well enough to transact business through its employment, we consider the following material facts established by a fair preponderance of evidence: For a short time 'after the death of her husband she resided with her son Gerett, but, on account of the little children of the family, it was not congenial; and she returned to the home of respondent some time during the year 1893, and continuously thereafter occupied an apartment erected as an addition to his home for her especial benefit. Soon after moving into this room, when congratulated by her pastor on account of her pleasant surroundings, she responded, in sub stance, as follows: “I am pretty comfortable. I could not stand the children at Gerett’s, so John built this room for me,
Pursuant to the direction of his mother, respondent from year to year took her share of the grain to market, and promptly accounted for the proceeds. Concerning the manner of do ing the work, one witness for appellants testified as follows: “I have been buying grain the last 5 or 6 years at Hooker. I handle coal, lumber and grain. I knew that John Pott transacted business for his mother during four years preceding March, 1898. During the years 1895, ’96, and ’97, he brought grain there that he claimed was raised on his mother’s land, and was her share of the crop, and he received the pay for it. Bach time that he brought the grain he had me make out a statement showing the number of bushels that was her share of the proceeds paid. Said he wanted to show it to her, so she could know just what her share was.”
Stephen J. Harmeling testified as follows: I live at Marion Junction. Have lived there 18 years. I was acquainted with the deceased, Mrs. Pott. I am acquainted with the defendant, John Pott. ' Had known them mpre or less frequently during 1897, ’98, and 1899. I saw Mrs. Pott occasionally, and during the year 1897 I should say about once in every eight
It was sometime between the 1st of January and the 3rd of March of that year.”
J. J. Pelmulder, the father of the appellants Katie and William, married a daughter of Mrs. Pott, and visited the old lady once or twice a year during the time that she lived with respondent. He testified, in part: ‘T do not remember seeing her in 1898, prior to March. The last time I remémber being there was about April 15, 1898. I saw her in the fall of 1897. * * * Q, Now, you may state if during these times when you saw her in 1895, ’96, and 1897, you saw any difference in her mental condition from what it had been when you knew her four or five years before that? A. I never noticed it. I never noticed any difference. At these times when I saw her I talked with her and visited with her- Q. You may state
The family physician, Dr. Richard Finlay, had known Mrs. Pott for about 17 years, and had called upon her professionally during the years 1896, ’97, and 1898, when she had attacks of asthma. He was present at the time the deed in question was executed, and concerning the transaction testified as follows: “John Pott came in for me to go out and see his children, and requested me to take Mr. Bogue along. Bogue asked me to witness the deed. I asked him' if she knew what she was doing, and he said ‘Yes;’ that he had written, and she had dictated it to him. I told him he had better take and read the paper over to her. He read it to her. I asked her if she understood it, and she said she did. I asked her if this was her own choice and free will, and she said, T guess I know my own business’ — just like that. Before I signed my name to it I took the paper and read it. I handed it to Mr. Bogue. He said the deed would have to be placed in the bank. We stopped there for dinner. Old Mrs. Pott was at the dinner table. She walked to the table. She engaged in conversation at the table. I have been going to see her more, or less since I have been in the county. I did aot see any difference in her physical condition and mental condition during the years 1894, 1895, and 1896. She could walk around and get about the same
Alan Bogue, Jr., the lawyer who drew the deed at her
Though respondent and his mother were always on amicable terms, the undisputed evidence shows that she kept her money, valuable papers, and other personal effects in her actual possession, separate from anything belonging to him; and it is, indeed, quite doubtful whether the facts and circumstances in evidence will justify the inference that a fiduciary relation existed between them. We shall not here produce the testimony offered on the part of appellants in support of their complaint, and it would be useless to set forth all the evidence by which we are firmly convinced that Mrs. Pott, though advanced in years, and at times greatly afflicted with asthma, was a woman of ordinary intelligence, continuity of purpose, and disposed to manage her own affairs. It was shown that she had surrendered to respondent two promissory notes which she had against him, amounting to $270; and were it to be assumed that the deed was practically without pecuniary consideration, and that a fiduciary relation existed between the grantor and grantee,- it would still be patent that all presumptions and inferences entertainable against the transaction are overcome by the preponderance of competent proof. Nor does the fact that appellants were not advised prior to the death of the old lady that the deed had been executed and placed in escrow for the future benefit . of respondent import militating
Sometime during the winter of 1898 Mr. Monk, a farmer, visited Mrs. Pott’s place to view the loss of a farm house consumed by fire, and found the old lady quite ill and confined to her bed. He did not speak to her at all, and all the conversation she had with others was carried on in a language that he did not understand. After stating the foregoing facts upon the witness stand, and that she was very weak, and could hardly draw her breath, on account of a coughing spell through which she had just passed, the following question was asked by counsel for appellants, and the sustaining of an objection thereto on the ground that no proper foundation was laid is assigned as error: “From what you saw and heard that day of the condition of Mrs. Pott, Mr. Monk, what would you say as to whether she was competent to transact ordinary business, or not, at that time?” Assuming that a determination of the matter was not within the exclusive province of the court, the witness possessed no knowledge upon which to base the conclusion for which the question called, and his answer was promptly excluded. It was error to permit other witnesses to testify concerning the competency of Mrs. Pott to make the deed in question, appellants are in no position to complain, for the reason that they were all allowed, while on the witness stand, to freely express their opinions with reference to the matter, and the record discloses nothing pertaining to the action of the court in the reception or rejection of evidence that would justify a reversal.
A studious examination of the entire record disclosed no error occurring at the trial, and the judgment appealed from is affirmed.