This action was brought in the district court for Colfax county to obtain the cancelation of a deed executed by plaintiff and his former wife to the defendant Melvin A. Kemp; to require defendants to reconvey to plaintiff the real estate described in said deed; to permit the return by plaintiff to defendant Melvin of certain notes and a bond which had been executed by said defendant and delivered to plaintiff; and to quiet the title of said real estate in plaintiff, on the ground that said defendant, who is the son of plaintiff, had obtained said deed from plaintiff through undue influence exercised over plaintiff at a time when plaintiff’s wife, defendant’s mother, was dangerously ill, and plaintiff, by reason thereof, was not competent to deal at arm’s length with said defendant, and alleges that there was an oral agreement giving him the right to demand a reconveyance of the property in case he at any time became dissatisfied.
The facts as disclosed by the record are substantially as follows: Plaintiff’s children, with the exception of defendant, had all married and started in life for themselves. Defendant was 22 years of-age, and engaged to be married. He told his parents that it was his intention to go farther west and establish a home for himself. As to this point there is a conflict in the evidence. Plaintiff says that defendant commenced importuning the father and mother to convey the farm to him, and that he would support them. Plaintiff says he objected, for the reason that he did not think it would be a wise thing to do, but that the mother, who was quite infirm and in a nervous condition, could not bear the thought of the son leaving, and that she importuned plaintiff to accede to the son’s demands; that his reason for acceding to the son’s demands was that he wanted to pacify his wife, and, as far as possible, prolong her life. The testimony of the son is that the proposition to deed the farm to him came from his father, and did not meet with his approval; that the matter was discussed between them for a couple of weeks, the father and mother both wanting him to take a deed to
The mother is dead. The father claims that his son agreed orally that, if the arrangement did not prove satisfactory to the old people, they could have the deed back whenever they wanted it. This the son emphatically denies. After living together and eating at the same table for a number of months, the old folks became dissatisfied, and retired to two rooms of the house in which they lived and did their own cooking. The son paid the $80 note, and paid the first yeaFs instalment of $70. Before the second year rolled around, the father became very much dissatisfied, and, as he says, demanded a deed from the son. The son denies this, and testifies that what the father wanted was for the son and his wife to move off the place, and give the old folks a lease upon the property, running to them, or the survivor of them, for life, so that they might have the use of the old home as before. The father and son each employed counsel, and they and their respective attorneys met in the office of the father’s at
Nowhere in his petition does he allege, as a reason for bringing this action, a desire to get the property in shape where his other children may obtain a larger patrimony than the $250 each, represented by defendant’s notes. When plaintiff’s present wife married him, his deed to the defendant and defendant’s life lease to him and to his wife Angelina, or the survivor of them, for their natural lives, was on record so that plaintiff’s present wife was well advised by the records that her marriage with plaintiff would not give her any interest, inchoate or otherwise, in the land then occupied by plaintiff. It seems to us, therefore, that when we consider the testimony of the son and his wife, and of the two lawyers who represented the respective parties at the time of the adjustment of their differences in 1900, and plaintiff’s long acquiescence in the contract as made, the judgment of the district court was clearly right in dismissing plaintiff’s suit.
•We recommend that the judgment of the district court be affirmed.
Affirmed.