129 S.W.2d 989 | Ky. Ct. App. | 1939
Affirming.
Mrs. Annie E. Zumalt died intestate in 1917 survived by her husband, George Zumalt, and seven children as her only heirs at law, viz.: Mrs. Corinne Z. Dance, Mrs. Mary Z. Ruby, Mrs. Annie Z. Crofford, Stanley Zumalt, Ira Zumalt, Clarence Zumalt and Jeannie Zumalt. At the time of her death she owned a tract of about 90 acres of land in Grant county. George W. Zumalt and the unmarried children continued to occupy the farm until February 29, 1935, when he died intestate, having never remarried. He left some personal estate including about $700 on deposit in a bank. A day or so after his death his children and heirs above named, in order to avoid costs and delay of administration, agreed that Stanley Zumalt should act as agent for the heirs in paying the debts of their deceased father out of the funds on deposit in the bank and distribute the remainder equally to the heirs, which has been done. *43
On March 16, 1936, Stanley Zumalt and his sister, Jeannie Zumalt, who were living with their father at the time of his death, as parties of the first part, entered into a contract with the other children of their deceased parents as parties of the second part, whereby the parties of the second part agreed to sell to the parties of the first part all their right, title and interest in the 90 acre tract of land and also all of the personal property owned by their deceased father for the sum of $2142.86, of which sum $5 in cash was paid to each of the second parties and the remainder was to be paid when the deed was executed and delivered in conformity with the contract on or before April 1, 1936. Each of the parties of the second part, however, reserved the right to select a "keepsake" from the household goods. The respective husbands and wives of the second parties joined in the contract.
On July 28, 1936, Mrs. Corinne Dance and her husband, Mrs. Mary Ruby and husband, and Mrs. Annie Crofford and husband, instituted this action against Stanley Zumalt and Jeannie Zumalt, Ira Zumalt, and his wife, and Clarence Zumalt and his wife, seeking a sale of the land of their deceased mother and for a division of the proceeds among the parties in interest alleging that each of the children owned an undivided one-seventh interest therein. They also asked to recover rentals for the use, occupancy and possession of the land by defendants.
By answer, counterclaim and cross-petition, Stanley Zumalt set up the contract hereinbefore referred to and alleged that ever since the execution thereof and on April 1, 1936, they were ready, able and willing and still are ready, able and willing to pay to the plaintiffs the balance of the purchase price for the land, but that the parties of the second part had failed and refused to convey the land to them under the terms of the contract. They asked for specific performance of the contract and that the parties of the second part be required to make and deliver to them a deed.
By reply plaintiffs alleged that the contract was procured by "force, fraud, duress, misrepresentations, misstatements and undue influence brought to bear and practiced upon them by the answering defendants by which they were misled, overreached and so completely overthrown in reason, poise and sense that they did not *44 fully appreciate the contents and nature of the writing nor the force and effect thereof," etc.; that the consideration recited in the contract was false and that they were to be paid a sum far in excess of that amount. They asked that the contract be declared void and without any binding force and effect; and that defendants be required to surrender it for cancellation and rescission and that they be granted the relief sought in their petition.
The issues were completed by a rejoinder traversing the allegations of the reply. On final hearing it was adjudged that the contract set up in the answer, counterclaim and cross-petition was not procured by fraud or duress but that same was entered into voluntarily and with complete understanding of its terms by the parties thereto and that it is binding and in full force and effect; that the plaintiffs' petition be dismissed and that defendants recover their costs; that the plaintiffs had refused to convey the property to the defendants, Stanley and Jeannie Zumalt and that the master commissioner of the court convey the three-sevenths undivided interest of plaintiffs to the defendants, Stanley and Jeannie Zumalt, upon payment by the grantees of the sum of $1285.71 representing three-sevenths of the purchase price of the land owing under the terms of the contract and that he distribute same to the plaintiffs in accordance with their several interests. Plaintiffs are appealing. Ira Zumalt and Clarence Zumalt had voluntarily conveyed their interests to appellee and raised no question about the validity of the contract, and they were therefore made parties defendant.
As grounds for reversal it is argued in substance that by reason of appellees' joint ownership, their occupancy of the property prior to and after the death of their mother, their relation to the other parties, the quasifiduciary capacity of Stanley Zumalt as agent chosen by the heirs and the confidence and trust thereby imposed in him, the burden was upon him and his sister, Jeannie Zumalt, to show complete fairness and bona fides of the contract on which they relied and the cases of Whittle's Adm'r v. Whittle,
It is argued in brief that the consideration recited in the contract is so inadequate as to indicate the correctness of appellants' contention but there is a sharp conflict in evidence on that point. A number of witnesses who live near and were acquainted with this farm and with farm values in Grant County testified that it was not worth over $2000. A number of witnesses for appellant put a greater value upon it, some testifying that it was worth $3000. The overwhelming weight of evidence is to the effect that the personal estate of George Zumalt involved was worth less than $1000. While there is some conflict in evidence it will be seen that appellants' contention of inadequate consideration does not find sufficient support in evidence.
As has often been said by this court, a presumption of innocence, good faith and fair dealing attends upon all lawful transactions between men. Therefore one *47
who asserts fraud, actual or constructive, in avoidance of his contract, has the burden of establishing his accusation. It is true that in circumstances such as referred to in Hanna et al. v. Eiche, supra, or where a transaction is attended by badges of fraud, the burden shifts to the one relying upon the contract to rebut inferences arising therefrom and to show the bona fides of the transaction. See Magic City Coal Feed Co. v. Lewis,
It is further argued in substance that because Stanley Zumalt was chosen as agent by the heirs to distribute the money of deceased on deposit in the bank, his contract to purchase the land and personal property from the heirs was voidable and the cases of Conrad v. Conrad,
It is our conclusion that the chancellor's finding is sustained by a preponderating weight of the evidence.
Judgment affirmed.