56 Wis. 444 | Wis. | 1883
It was said by the present chief justice, in Leonard v. Barnum, 34 Wis., 105, that “ the rule is familiar and almost axiomatic that where parties occupy with respect to each other peculiar relations in which confidence is necessarily x-eposed by one party, and influence is acquired by the other, all transactions and dealings between them are watched by courts of equity with more than ordinary jealousy to see that such confidence is not betrayed.” And again: “An agreement, to be valid, must be freely entered into by the parties and there must be no concealment of material facts, and no surreptitious advantage taken by the intelligent and strong over the unwary and ignorant.” All acts, omissions.
We cannot disturb the findingof the learned circuit judge that such deed was delivered to Jane by direction and order of the plaintiff. Although there is a conflict of testimony on the question, we find no such clear preponderance against the finding as will authorize us to set it aside. Was the execution of that deed by plaintiff to Jane an improvident act? and was the same obtained by undue influence exercised by Jane over her mother?
It does not appear that -Mrs. Dailey had any considerable property besides the land in controversy, which the testimony shows is woi-th from $2,000 to $2,500. In 1876 she resided on the land with Jane and her imbecile son, John, and they had resided there for several years. Mrs. Dailey had other children, but they had left home, and it does not appear and is not claimed that they contributed anything to the support of their mother. It is very apparent that the product of the land was the only means of support which the family had. Jane had always lived with her mother, and cared for her and John. She was evidently a woman of activity and energy, and equal to the task imposed upon her. She seems to have had the whole management of the farm and family affairs — necessarily so — and she managed them ■well.
Under these circumstances it was not an improvident act for Mrs. Dailey to convey her land to Jane, upon the consideration that Jane should support and maintain her and her weak-minded son during their respective lives. Considering the value of the property, and the probabilities of the lives of
It is unnecessary to prolong remarks upon the general features of the case. ¥e have carefully examined and scrutinized the testimony in the light of the rules above stated, and are unable to say that it preponderates against any of the finding's of fact, so far as they affect the defendant Kastell. He has done and is read}?- to do all that equity requires of him, and until he fails in that behalf his title should not be disturbed. In case of such failure hereafter, the court on proper proceedings will cancel the conveyance to Jane, and from her to him, without hesitation. Bogie v. Bogie, 41 Wis., 209; Bresnahan v. Bresnahan, 46 Wis., 385; Blake v. Blake, ante, p. 392; and Delong v. Delong, post, p. 514.
We cannot concur in that portion of the eighth finding of
It is immaterial that the agreement rested in parol. She could not safely disregard it for that cause, for any court of
It results from the above views that as to the defendant Kastell the judgment of the circuit court must be affirmed; and as to the defendant Mrs. Bitz, the judgment is reversed; and the cause will be remanded with directions that judgment be entered declaring the mortgage executed by Kastell
By the Court. — • Ordered accordingly.