Fitzgerald v. Tvedt

Sherwin, J. This is an’ action to set aside and cancel a deed signed and properly acknowledged by the grantor therein, Ole Axness, on the 6 th day of December, 1905. The plaintiff alléged that it was procured by undue influence, that it was without consideration, and that at the time it was executed the grantor was without mental capacity to make a valid deed. The trial court found for the plaintiff without indicating. upon which ground of the petition the judgment was based, and the appellees’ case is presented to us with apparent reliance upon the three propositions. Ole Axness was born in Norway, and came from there •to the United States before he was of age. He bought the land involved herein, two hundred and thirty acres, a good many years before his death, and by hard work and the practice of the most rigid economy he finally paid for the land and improved and stocked it. His health partially failing in 1902, he sold off his live stock and rented his farm. In. December, 1904, he went back to the old home in Norway for a visit. He went to Haugesund, Norway, a city of some considerable size, where through the medium of a message from a neighbor in Em-met County to one Torkel Hanson Tvedt he became acquainted with the latter and his family, and, after a short stay at one of the leading hotels in the city, he was taken into the Tvedt home, where he remained until his return to Iowa in August, 1905. There were several children in the Tvedt family. One was a son, Sóphus, ten years old, who slept with Ole Axness while he was at the home, and [42] another was the defendant Olof Tvedt, who was then fourteen years of age. Axness seems to have been particularly fond of this fourteen year old boy, and brought him back to Iowa with him, promising the parents that he would be a father to him. lie paid the expenses of his trip and made him his companion after his return. Axness had never married, and his relatives were two half-sisters in Norway and a grand-niece in this country, Elma Marie Watland, the plaintiff herein. He had for some time been affected with pulmonary consumption, and soon after his return to Iowa he became convinced that he had not long to live, and, following an illness of several days duration, he made the deed in question, conveying his land to Olof Tvedt. The deed was drawn by the cashier of the bank where Mr. Axness had for many years done most of his business, and it was recorded at the instance of. the grantor, and was finally delivered to the grantee named therein. There is no pretense that any consideration was paid for the conveyance. 1. Gift of real property: conveyance: mental capacity of grantor. It was a gift pure and simple; but no one will seriously contend that such a gift may not be made. Galer v. Galer, 108 Iowa, 496; Reeves v. Howard, 118 Iowa, 121. There is absolutely no evidence in the record tending; even to- show undue influence, ^ ' onrl aiict T-he evidence relied up-we may dismiss the subject without further comment, on to support the proposition that Axness was mentally incapable of making a valid conveyance at the time the deed was executed is not much stronger than that relied upon to support the claim of undue influence. No witness who testified in the case intimated that Axness was incapable of intelligently transacting his business affairs, or that there was anything in his conduct or talk indicating that he did not at the time of executing the deed fully and intelligently understand the nature of the business he was engaged in, or the nature and extent of his [43] property. On the other hand, the record is crowded full of evidence showing that Axness was in the full possession of his mental faculties, not only at the time the deed was made, but until his death. No useful purpose can be served by giving the evidence in detail. The rule of law is that when a grantor or testator understands fully and intelligently the nature and extent of his estate and the nature of the business he is engaged in when making a will or deed and recollects the objects of his bounty, he is capable of making a will or conveyance. Perkins v. Perkins, 116 Iowa, 253; In re Evans’ Estate, 114 Iowa, 240; Meeker v. Meeker, 74 Iowa, 352. 2. Same: burden of proof. The burden was on the appellees to prove mental incapacity, and they have signally failed to do so. One Dr. McDade of Minnesota testified that he had treated Axness in 1901 for “pleurisy and probable effusion and lung complications,” and that he next saw him in March, 1906, when he was called to treat him for erysipelas of the face and to make an examination of his lungs. This doctor was then asked if he then found Axness “suffering from any particular ailment,” and he answered: “Senile dementia is what I diagnosed the, case.” He further testified that Axness was thus affected in 1901 when he treated him for pleurisy and lung trouble. However correct the doctor’s diagnosis of his other ailments may have been, we are thoroughly convinced that Axness was not affected with senile dementia either in 1901 or in 1906. 3. Deeds: . delivery: acceptance. The question of the delivery of the deed seems not to have been raised in the court below and hence can not now be properly considered. We may say, however, that we have no doubt as to the delivery. Com- . , _ petent testimony shows that such was the . intent of Axness. The deed conveyed a present estate, and it was recorded and afterwards actually in the possession of the grantee. The facts are [44] sufficient to establish delivery. Luckhart v. Luckhart, 120 Iowa, 248. A minor is presumed to have accepted conveyance. Davis v. Davis, 92 Iowa, 147. The judgment must be reversed, and the case remanded for a decree, in harmony with this opinion, or the appellants may have a decree here if they so elect. — Reversed.