*1
deemed an such abuse of discretion V. Homer NELSON et Defendants al., and Respondents. grave suspicion is a instances where there may justice been be- have miscarried and Earline Nelson, V. Homer NELSON enlightenment cause of the lack of on vi- Cross-Plaintiffs Respondents, point, sup- tal which the new evidence will v.
ply; and the other elements attendant on Es Administrator NELSON, Nels A. K. and Teresa Nelson, tate obtaining ground a new trial on the Cross-Defendants and Appellant. newly present. discovered evidence are If No. 13100. upon there be evidence before might which reasonable men differ toas Supreme Court of Utah. whether or not the is guilty, defendant Aug. may deny trial court motion a new trial.5
The facts the affidavit neither
qualify as evidence that could diligence
reasonable have been discovered produced at trial they nor would
such as to proba render different result
ble on retrial of the There is case. no ba
sis which this court could hold that
the trial court abused its discretion. judgment court is af-
firmed.
HENRIOD, TUCKETT, ELLETT and
JJ., concur.
CROCKETT, J., concurs the result. Jiron, 21, 23, (1972).
5. State v.
27 Utah 2d
A. Park Salt Lake plaintiff appellant. and Frandsen, Bryce Bry- Duane and K. ner, Price, Hоmer for V. Nelson. Diamant, Alke City, T. Salt Lake Teresa Nelson.
TUCKETT, Justice: proceedings Plaintiff filed these in the seeking annulling a decree and below setting conveyance Virgil aside H. Nelson, Nelson to himself and Teresa K. wife, joint tenants, as deed also a from Teresa K. Nelson to Nel- Homer V. Nelson, his son and Earline From wife. plaintiff appealed. an has adverse decision persons All of thе involved in this suit family. Virgil are one H. members of Teresa hus- Nelson and K. Nelson were parents band and the chil- and wife of ten herein, plaintiff dren. Neis A. appointed had been fa- administrator ther’s Homer son estate. V. Nelson was a and Teresa and one of the grantees a deed from his mother Tere- February 1968,Virgil sa. Prior to was approximately the owner of 1700 acres of «2 under her direction. рrepared by Teresa The land or County,
land in
Utah.
Grand
purchase price of
recited the
The contract
which were
separate
in three
tracts
was
$10,000
$1,000 per
payable at the rate of
the same
contiguous
but were within
payment
annum and a
are
down
land
general
$10.
The tracts of
area.
18, 1968,
Thereafter,
July
on or about
Ter-
terrain,
on the date above
mountainous
warrаnty
conveying the
esa executed a
deed
the land had
prior
thereto
mentioned
Earline,
property to Homer and
his wife.
Teresa
grazing.
been used for
portion
In the sales
of one of
Lake
transaction
land in Salt
owned other tracts of
the tracts of land was reserved so as to
County
joint
tenants. For
considera-
give Homer’s brothers and sisters a tract
urged Virgil
period
had
ble
of time Teresa
long.
ISO feet wide and 2640 feet
After
tenancy with her of the
joint
create a
.to
acquired
and his wife
title to the
County.
lands Grand
“Homestead,” he and his
mortgaged
wife
26, 1968, Virgil
con-
February
On
to the Farmers' Home Administration to
ail-
suffering from various
fined
his bed
secure loan
$22,000.
in the sum of
sign a
day
on that
he decided
ments but
Approximately
year
en-
County property
conveying
the Grand
tered into the reаl estate contract with Ho-
joint
tenants.
himself and Teresa as
*3
began
mer she
having misgivings about the
in the
who lived
Teresa called a woman
attempted
sale and
persuade
to
Homer and
public
notary
a
neighborhood and
was
who
his wife to reconvey the “Homestead” to
and acknowl-
to come to the
home
Nelson
her so that she could convey the “Home-
edge
notary
appear
and
the deed. The
stead” to all of her children jointly.
signed Virgil
pres-
in the
by
the deed was
notary
During
it into
ence of the
who took
another
the summer of
the sale of
1970
notary and af-
the
room where she
as
“Homestead” to Homer became known
days
fixed her
died three
to the
seal.
other
family
members of the
who
Virgil, Ter-
disgruntled
thereafter. After the death of
were
with the transaction.
It
purchase
appears
esa discussed
Homer his
of
with
from the record that Teresa had
County
property
the
which is the
plan
Grand
formulated a
to
property
recover the
subject
by
of this suit and
is referred
claiming
which
procured
that
Virgil’s
she had
pleadings
to in the record and the
the
as
name
by
on the deed
pro-
a
These
trick.
27, “Homestead.”
or about
ceedings
On
Septеmber
were commenced in
May
prepared
Teresa
and forwarded to Homer
Virgil’s
the administrator of
estate
River, Utah,
at his home
uni-
filing
complaint
in Green
seeking
set aside the
form real estate contract which had been
During
deed.
testified
Teresa
procured Virgil’s signature
that
to the
she
on the
transaction between Teresa and Ho-
by placing
urged
deed
other
he in- mer
it with
he hаd
Teresa
to offer
the
sign respecting grazing rights
tended to
“Homestead” to
fam-
other members of the
ily
permit
and in
and
that manner
she concealed
them to bid on
Tere-
from
it.
opinion
the nature
the
he
sa was
the
of
document
was
of
that other members
signing.
family
of
She
testified that Homer
the
and
also
not
interested
was
of
person
aware
The
that
was
proper
fraud.
Homer
have
Tеresa
at
variance with other out-of-
inasmuch
“Homestead”
as he lived
court
near
property
statements made
her and letters
and
make
could
use
it.
appears
she had
It
prior
written
to the time she set
that the terms of the transaction
about attempting
were largely
to recover
dictated by
the “Home-
Teresa and that
stead” from
spent
drafting
Homer.
time
considerable
real
setting
estate contract and
forth the
The trial court elected
to believe
purchase.
terms
appears"
It also
that
that
testimony of
concluded
Teresa and
purchase price
arrived at in the transac-
tenancy
Virgil creating joint
deed from
tion was reasonable in view of the use to
and
was valid. The
himself
which
the “Homestead” was
at the time.
further
found
real еstate contract
that
and
entered into between Teresa
Homer
The
relationship
of parent
and
warranty
and his wife and the
child does not constitute such a confiden
Teresa to
his wife were valid
Homer and
tial relationship as
presumption
to create a
binding upon
parties.
of fraud or undue influence. The evidence
in this
case
insufficient
repos
show
supports
findings
reсord
the court’s
al of
confidence
party
and the re
appears
Virgil prior
his death
sulting superiority
and influence on the
process
perfecting
was in
certain
other party.1 There is nothing to show
rights
grazing
water
litigating
also
that Homer
any
exercised
.undue influence
rights,
Virgil,
death
Tere-
over Teresa. Teresa is an educated wom
urged
sa
perfect-
continue
an and had taught schоol for
period
ing the
filing
appeal
graz-
water
approximately
years.
ing decision. Conversations between Ho-
*4
mer and Teresa
led
the conclusion that
It should be
testimony
noted the
Homer would be unable to continue the lit-
notary public
present
who was
at the time
igation part
perfect
rights
the water
un-
question
in
did not
less
property.
she was owner of the
Prior
trickery
observe any
procuring Virgil’s
in
Bradbury Rasmussen,
378,
v.
16 Utah 2d
84 ELLETT, (dissenting): appear
signature, it from Justice any testimony that she was unaware I dissent. the nature of the concealment of This is equity a case in cancel two being signed by Virgil. gives In such deeds. a case this court due consideration to the fact proving Plaintiff had the burden of judge saw the witnesses and heard the evi convincing proof clear and that the con dence. However we nеed not affirm his veyance Teresa was ob findings merely there is some because par tained fraud and that Homer either credible evidence to As sustain them. ticipated knowledge in the fraud or had stated in the Reynolds case of Cram et v. it. al.1 The trial court was an advan in an equity case [WJhen taged. position evaluating testimony findings clearly not, of fact are in our veracity opiniоn, the witnesses as to and the justified evidence, its by the it is weight given being to be to it. This a suit our duty to arrive at the conclusion we equity, duty is the of this court compelled think proof, regard- weigh law, the facts as opinion well as the but we less of the judge. of the trial only prepon reverse if clearly the evidence There is no dispute in the evidence. against findings derates trial judge trial elected not tо believe the court.2 defendant Teresa Nelson and so ruled against plaintiff. In doing so I think After a careful consideration and he erred. examination of the and other ev Virgil Homer Nelson was the husband idence reversing we find no basis of Teresa and the father of V. Homer judgment below, of the court and that de Nelson. He became a semi-invalid in 1936 Respondent cision is affirmed. is entitled per a 75 cent disability depended to costs. entirely upon his wife for his care and
comfort. She was in constant attendance CALLISTER, HENRIOD, J.,C. J., him at all during times almost one concur. third a century. Lambeth, 287, 384, (1919).
2. Givan v.
10 Utah 2d
351
1. 55
P.
Utah
959;
Grow,
P.2d
Brimhall
v.
Utah 2d
731;
(Or.),
480 P.2d
Bartlett v. Whidden
tains which he called the Homestead. Ter long importuned esa for time hаd him to right, Q. Monday All morning. He her, joint tenancy this land with all died the 29th so this would be the last to no always avail. He said it that was to Monday that he lived ? be all children. About month That’s A. correct. before he died he made his will2 wherein he provided: “The Homestead must not he Q. right. All you Now tell us what years. sold for my At that time chil happened did and what ? dren disposed will decide how it shall be A. About the deed? of.” Yes, Q. getting, you about did whаt lawyers feared that the get getting about him sign the deed. everything probate proceedings, case of and she get Monday was determined to A. I said him that the Home- morn- stead ing, in their joint you you names as she Paw don’t think sign so better thought probate proceedings. grazing said, to avoid papers those ? And he yes.
Virgil Homer seriously Nelson became died, ill two Q. weeks before he and suffered Now what was his condition at greatly pain. A prescribed doctor that time ? pains,
medicine for his Sunday, and on right. All A. At that time he was February they subsided. On Monday He hadn’t been bedfast. out of the bed following, signature Teresa secured his Sunday since about noon. a deed secretly which' she had caused Q. you And what did as to observe prepared. testimony explains Her how it generally his condition at that time on accomplished: Monday? Q. you did get What do to him to very, very, very A. He was sick. sign papers? First, those let me ask Very. get And couldn’t out of bed. you, you sign help papers? did him Answer that. Q. anything Did this have to do with your talking signing pa- to him about helped sign
A. I him pers? that. comply strictly feelings particular
2. This will failed to were about land statutory provisions question. and hence not be could probate, admitted but show what He, my сatch on. So I, husband would his hand was swollen. Said, are into the how came bedroom. And his hands were face was white. says, pretty you Nelson? He stopped eating. Brother He had He was white. in and down kind Sunday good. came sat pan. night, a uri- She using the bed said, And I well thought the bed. very, very And weak and I of close to nal. maybe you sign pa- these got Poppa better Poppa going get isn’t I’ve well. signed. pers grazing right papers. that deed These now. *6 floor, him, helped put I his feet on ij/t sji % % helped sitting posture. him to a Sat drawer, my I secre- A. stood pen my in down him. hand. I With tary had that deed and drawer where I magazine, large had a magazine get may debated. If Paw does well I papers the four on first it, it. I held it This is not ever have to show to him. grazing he right pa- could see was a maybe get the last chance I’ll evеr per. signed He name at the his bottom signed signature. that deed so homestead won’t where it said He did that pen, He himself. had the I didn’t have probated. have to be help him do that. Then I turned Q. you do ? So what paper bit, that just a little And little. signed he paper I turned name. that it, put deed, inserted A. I took over, signed just and he his name a little graz- three between those sheets of higher. bit I turned that one over аnd he ing papers that I knew wanted he his name a little bit lower I sign. I had asked him before. That again. just I laid them over there and put three sheets. them in between those helped Mrs. my Christenson put husband telephone. I tele- Then to the I went his feet back lay on the bed and down Georgann phoned my neighbor, Mrs. again. papers She took the out into the her on the I told Christenson. Wilson living room table. Looked through a deed I have phone, Mrs. Christenson them, saw the guess saw, deed. I she sign no, you that like to have I would — took she the deed neighbor. over to a right you come over notarize. Could early in the morn- away? This is real To perfidy hide her she told some of her morning. she ing. Monday When On children that her finally husband had seen said, appear as now don’t over I came light voluntarily signed and had was afraid be friend. notary. I deed. On the witness stand she admitted Just notary making that acting as a the false if she was statement. grantor. Mrs. testified trial Cottam decision the a memorandum In follows: judge stated: early in the morn- She called me has made a witness
When
statements,
ing.
under
a director of the
Citi-
or not
I am
Senior
false
whether
goI
zens
in Firmont Park and
oath,
Center
very
it is
Court to
difficult
every morning. I
And she
or
there
would.
determine
that witnеss was was
when
early
morning
in
I
called me
before
telling the
.
truth.
has
joint
dence,
fraud and
#
Since
proved by
not sustained this burden
therefore
tenancy
the Court
ifc
a fraud of this character must
deed was not obtained
clear
finds and holds that said
[*]
and is
finds that the Plaintiff
‡
valid
convincing
‡
binding.
proof,
evi-
I would come over and notarize
left to
band’s
you today?
And
she
good morning Brother
over
said,
I went
and she met me at the
signature.
go
had the
he’s
the center and
And he
the bedroom. And I
the bedroom. He
papers
So
says, just
Nelson. How
immediately
to be
asked
door.
notarized,
fine but
me
went
hus-
said,
And
are
ill.
if
I’m
brought
weak. And she
sight
judge
The trial
seems
have lost
for him
to notarize. And she
of the fact that Teresa was a defendant
feet over on the
And
sit-
floor.
had him
*7
testifying against
interest in
her own
the
ting up.
she
And
took a
the
book and
Besides,
gift
matter.
when
is obtained
papers.
papers
she had
Now
a sheaf of
by
superior position
one in a
from one who
the
and one was
deed in with some other
upon
depends
person,
and relies
such a
papers and the
something
others were
presumption
gift
there
the
arises
grazing.
do with
But I did not read the
fraud,
was
and the burden is
obtained
papers.
sign-
What was
I—he
them.
presumрtion.3
the donee to rebut that
ed them.
papers.
She turned the
He
plaintiff
only proved fraud
took,
each one.
turned and
herself,
the defendant
but
living
handed them to
went in
me. I
in addition thereto corroborated the fraud
Signed my
room.
name. Put the seal
by calling Georgina
(now
Christenson
Cot-
on them.
appears
tam) whose name
on the deed as
notary
acknowledgment
who took the
Omegа
40,
Woolley,
al.,
Johnson,
9
Co. v.
et
Utah
son v.
Utah 2d
P.2d 420
Inv.
72
337
474,
(1928) ;
Est.,
(1959).
In
P.
re Swan’s
797
277,
(1956) ;
4 Utah 2d
THE In COURT: $10,000 The court found that was a fair land, price paid although to be for the presence my In ? realtor had testified that it was worth your memory. And in MR. SMOOT: deed, $40,000. receiving Soоn V. me that she said some- A. Seems to $22,000. mortgaged Homer Nelson it for grazing papers. As near thing about the Teresa testified that V. Homer knew remember. But all I I can practiced get the scheme she had signature. his notarize signed by deed I am of the husband. put You him THE COURT: didn’t opinion that the deed to V. cannot under oath? regardless stand of his complicity I didn’t him under matter for grantor,' A. No oath. the reason that his Tеresa, No, forged sir. had no title under the from her husband. Immediately after the funeral of Homer Nelson the defendant V. Homer The law can be in 11 found A.L.R.3d at began mother, trying Nelson his 1076, page where the editor of an annota- deed the homestead regarding obtaining signature tion ar- wife, Earline, given him. He and had tifice or deceit stated: probate Teresa a book on how to avoid genuine signаture Where the to an in-
proceedings in Finally the courts. he en- procured strument been has artifice tered into a uniform real estate contract to deceit, or part without an intent on the purchase $10,000 acres of land for party signing to execute such an down, payable paid the balance to be at $10 instrument, the attitude of the courts has $1,000 per year the rate of withоut inter- signature been that the thereto should be est, $1,000 paid 1, January first to be forgery. treated as a years some one one-half future. my opinion finding In of the trial he,
V. Homer Nelson testified that should be that Teresa obtained the *8 wife, deed from her husband that May and Teresa the contract fraud and nullity it is July on or a mere and further that the 1968. Thereafter and about 18, 1968, warranty deed from Teresa to Homеr and gave deed cov- V. Nelson wife, Earline, is of effect ering property the Homer no force and Homestead to V.
SO I would therefore judgment reverse the cially so if representations the the de- of rendered and award to appellant. costs the fendant V. Homer Nelson as are true
the fairness of the contract. CROCKETT, (dissenting): Justice this, beyond But im- what is more me, portant make duе allowance for the the fact universally that it would un- is. accepted doubtedly quite rule: that fraud this be an character embarrassment for proved expose must be her to her convincing attempt- clear and ev- own avarice in idence, ing and also for the advantaged posi- property by deceiving the herself Nevertheless, tion of Moreover, her only the court. husband. direct my judgment the touching evidence so evidence clearly and the truthfulness of persuasively testimony accomplished shows her that the as to how she deceased deed, tricked signing into trickery, notary. the the is that it should that It is significant nullified. persuasive, What more clear and con- and should be that vincing anyone evidence testimony notary, would want than a disinterested grantee witness, have the of the deed un- corroborates the confess circumstances of der oath her wrongdoing signing own just as did Tere- as Teresa described it. Nelson, sa points that All due to unerringly remorse of con- evidence so science, because she had her conclusion that she deceived tricked her husband dying husband, signing she had resolved into to tell deed that I think this is a truth rectify patent wrong case say shе had done. where this court should clearly preponderates that the evidence In addition to undisputed such credit as contrary finding and substitute its testimony sworn normally given, my that of the trial court. opinion her evidence has substantial addi- credibility. tional credibility assurances of For similar Without reasons I think pursuing the detail as to what her econom- and the evidence circumstances show ic advantage having persuasively clearly would be in received the truthfulness son, property, compared having the entire her that defendant V. go re- presumably into the estate and knew or should have third, ceive it seems safe to assume known facts he should not be that it advantage be to her deemed to any advantage to have have obtained espe- procuring property. received the entire This is her to enter into contract.