Dailey v. Kastell

LyoN, J. 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. — 452 — and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and which are injurious to another, or by which an undue and unconscien-tious advantage is taken of another, are fraudulent. 1 Story’s Eq. Jur., § 187. By these rules the validity or invalidity of the conveyance by the plaintiff to her daughter Jane in 1876 must be determined. 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 — 453 — the beneficiaries, the consideration was ample. Considering also the services of Jane to her mother and brother, the conveyance was eminently reasonable and just. True, the deed to Jane was inartificially drawn. It should have fully expressed the conditions upon which it was made, or Jane should have executed an undertaking to maintain her mother and brother. But that difficulty is now removed by the execution by Kastell and his present wife to Mrs. Dalley and John of the mortgage required by the circuit court on the same land to secure such maintenance. Although it must be conceded that Jane had a controlling influence over her mother, and probably induced her to execute the deed under consideration, yet, in view of the facts that the conveyance was a reasonable and just one, and that Mrs. Dailey had sufficient mental capacity to make a valid conveyance (although weak in mind), it cannot properly be said that such influence was unduly or wrongfully exerted. It is not unlawful to influence a weak-minded person to do that which is just and for the best good of such person. Such influence is not undue,— in other words, is not fraudulent,— and does not necessarily vitiate the act produced by it. 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 — 454 — fact to the effect that the plaintiff was of sound miud and memory, and mentally competent to transact her own business, when she executed the deed of October 3, 1881, and understood and comprehended the legal effect of such deed. The proofs satisfy us that such was not the fact. Moreover, only four months later a competent court adjudged her incompetent to have charge of her property, by reason of «extreme old age. No rights adverse to her can or ought to be predicated on that instrument. Neither can the last finding be upheld, that the defendant, Mrs. Bita, when she took her mortgage, had no notice of any lien of the plaintiff, legal or equitable, upon the land in controversy. The deed of October 3, 1881, executed by Mrs. Bailey to Kastell, was made for the purpose of correcting a misnomer in the deed of Mrs. Bailey to Jane, and refers to that deed. Mrs. Bita knew the purpose for which the deed of October 3d was executed, and presumably knew its contents. There is considerable testimony tending to prove that she had actual notice of the deed to Jane, and of her conveyance to Kastell. But, whether she did or not, the recitals in the deed of October 3d were sufficient to put her upon inquiry. She was thus informed that Mrs. Bailey had once conveyed the land to Jane, and this made it necessary for her to know that Jane had conveyed before her decease. That she actually knew of the existence of both these conveyances scarcely admits of a doubt. She is, therefore, chargeable with notice of their contents, and there was sufficient in each of them to put her upon inquiry. Both told her that an agreement existed between the parties affecting the consideration for the land. If she had asked Kastell what it was he would have told her, no doubt, as he answers here, that it was an agreement to support and maintain for life Mrs. Bailey and John. It was her duty to make the inquiry. It is immaterial that the agreement rested in parol. She could not safely disregard it for that cause, for any court of — 455 — equity in any civilized country, having jurisdiction, would" annul a conveyance executed under such circumstances, if the grantee should refuse to perform such parol agreement. Furthermore, transactions like these between Mrs. Dailey, Jane, and Kastell are not, usually, very secret. Those in question here were well known in the neighborhood, and were the subjects of frequent conversations between the parties thereto, and their neighbors and friends. Mrs. Bitz lived in that neighborhood, and knew Mrs. Dailey a quarter of a century. When she made the loan to Kastell (which was after Jane died), she admits she knew Kastell was supporting Mrs. Dailey. She knew also that Mrs. Dailey continued to reside upon the premises. It seems almost incredible that, knowing all these facts, the suspicion never crossed her mind that possibly Mrs. Dailey had some interest in the little farm which she once owned and had never left, and from which her subsistence and that of her imbecile son had been drawn for many years. Our conclusions are that when Mrs. Bitz took her mortgage she was chargeable with notice of the agreement of Kastell to support Mrs. Dailey and her son; also that the title of Kastell was liable to be annulled if he refused to execute the agreement which was the sole consideration of the conveyances from Mrs. Dailey .to Jane, and from Jane to him, and that if he elected to execute the agreement (as he does) the court would decree the obligation so to support and maintain Mrs. Dailey and her son a charge upon the lands paramount to the lien of any mortgage exeouted thereon by Kastell to a mortgagee with notice of the plaintiff’s equities. 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 — 456 — and wife to the plaintiff and John a first lien and charge upon the land paramount to the lien of the mortgage of Mrs. Bitz. By the Court. — • Ordered accordingly.