264 P. 1055 | Kan. | 1928
The opinion of the court was delivered by
The action was one to set aside a deed to certain real estate on the ground of lack of mental capacity of the grantor, fiduciary relation between the grantor and grantee, undue influence upon the grantor and nondelivery. Plaintiffs prevailed, and defendant appeals.
The facts briefly are these: The deceased, father of these litigants, had for many years lived in Smith county, and at the time of his death was possessed of 160 acres of land (in controversy), a Ford automobile worth' $125, $1,400 in cash, and a mortgage for $2,500. Following the death of his wife in April, 1924, he first lived with his daughters and then with a grandson, defendant’s son, and then in February, 1925, went to live with the defendant at Reamsville, a small inland town some fourteen miles from Smith Center. The defendant operated a grocery store. The plaintiffs lived some miles away on farms of their own. On February 5, 1925, deceased went alone to Smith Center to the office of Henry Clark, an old friend,
The principal questions in the case are as to whether there was an actual delivery of the deed, and if delivered, whether through
In rendering judgment the trial court had a statement made of record in which, among other things, it was said:
“They [plaintiffs] do urge two things, they urge the deed was not delivered, and that there was a fiduciary relation existing between the defendant and his father. If the facts show a fiduciary relation existed between them it would be the duty of the son, the defendant, to show good faith in all the transactions that led up to the execution and delivery of the deed. The evidence as to a fiduciary relation is almost entirely circumstantial in this case. Possibly one exception; there is a statement by one of the witnesses, . . . that the old gentleman, Van Cleave, the father, took his papers out of the bank down there because his son wanted him to, and took them up and put them in his son’s vault. This is undenied. The further circumstances show that the son built a room on his house to take care of his father, shows that he expected to go there and live and make his home there the rest of his days, and did. It is not the natural thing for a father to give all of his property to one of his children, and disinherit the others, but under the defendant’s story in this case, that is just exactly what his father did, gave him ah of the property, and left the daughters without any. But he could do that if he wanted to, and it was honestly and fairly done. He told his old neighbors up there in his own neighborhood that he wanted his children to share equally in the property. . . . I believe taking the circumstances altogether, they do so tend to show fiduciary relation. The evidence about the delivery of the deed is rather unsatisfactory ... as far as the actual delivery of the deed is concerned. ... Of course, if the burden is upon the defendant to show good faith, he hasn’t shown it, I don’t believe, on his part. The finding of the court will be that the deed should be set aside.
“I will make the further finding, each party to this suit is found to be the owner of an undivided one-third interest in the land described in the petition, and then I will order the land partitioned.”
The defendant’s attempted explanation of the various happenings, including assignment of the two certificates of deposit transferring $1,400 in cash and the alleged gift of the automobile were clearly unsatisfactory. It was a fact case resolved by the trial court against the defendant on sufficient evidence. The general finding of the court for plaintiffs included a finding of nondelivery of the deed.
The judgment is affirmed.