Nelson v. Nelson , 30 Utah 2d 80 ( 1973 )

TUCKETT, Justice:

Plaintiff filed these proceedings in the court below seeking a decree annulling and setting aside a conveyance from Virgil H. Nelson to himself and Teresa K. Nelson, his wife, as joint tenants, and also a deed from Teresa K. Nelson to V. Homer Nelson and Earline Nelson, his wife. From an adverse decision plaintiff has appealed.

All of the persons involved in this suit are members of one family. Virgil H. Nelson and Teresa K. Nelson were husband and wife and the parents of ten children. Neis A. Nelson, the plaintiff herein, had been appointed administrator of his father’s estate. V. Homer Nelson was a son of Virgil and Teresa and one of the grantees of a deed from his mother Teresa. Prior to February 26, 1968, Virgil was the owner of approximately 1700 acres of land in Grand County, Utah. The land was in three separate tracts which were not contiguous but were within the same general area. The tracts of land are of mountainous terrain, and on the date above mentioned and prior thereto the land had been used for grazing. Virgil and Teresa owned other tracts of land in Salt Lake County as joint tenants. For a considerable period of time Teresa had urged Virgil .to create a joint tenancy with her of the lands in Grand County.

On February 26, 1968, Virgil was confined to his bed suffering from various ailments but on that day he decided to sign a deed conveying the Grand County property to himself and Teresa as joint tenants. Teresa called a woman who lived in the neighborhood and who was a notary public to come to the Nelson home and acknowledge the deed. The notary did appear and the deed was signed by Virgil in the presence of the notary who took it into another room where she signed as notary and affixed her seal. Virgil died three days thereafter. After the death of Virgil, Teresa discussed with Homer his purchase of the property in Grand County which is the subject of this suit and which is referred to in the record and the pleadings as the “Homestead.” On or about May 27, 1968, Teresa prepared and forwarded to Homer at his home in Green River, Utah, a uniform real estate contract which had been prepared by Teresa or under her direction. The contract recited the purchase price of $10,000 payable at the rate of $1,000 per annum and a down payment of $10. Thereafter, on or about July 18, 1968, Teresa executed a warranty deed conveying the property to Homer and Earline, his wife. In the sales transaction a portion of one of the tracts of land was reserved so as to give Homer’s brothers and sisters a tract ISO feet wide and 2640 feet long. After Homer and his wife acquired title to the “Homestead,” he and his wife mortgaged it to the Farmers' Home Administration to secure a loan in the sum of $22,000.

Approximately one year after Teresa entered into the real estate contract with Homer she began having misgivings about the sale and attempted to persuade Homer and his wife to reconvey the “Homestead” to her so that she could convey the “Homestead” to all of her children jointly.

During the summer of 1970 the sale of the “Homestead” to Homer became known to the other members of the family who were disgruntled with the transaction. It appears from the record that Teresa had formulated a plan to recover the property by claiming that she had procured Virgil’s name on the deed by a trick. These proceedings were commenced in September 1970 by the administrator of Virgil’s estate filing his complaint seeking to set aside the deed. During the trial Teresa testified that she procured Virgil’s signature on the deed by placing it with other papers he intended to sign respecting grazing rights and in that manner she concealed from Virgil the nature of the document he was signing. She also testified that Homer was aware of the fraud. The testimony of Teresa was at variance with other out-of-court statements made by her and letters she had written prior to the time she set about attempting to recover the “Homestead” from Homer.

The trial court elected not to believe the testimony of Teresa and concluded that the deed from Virgil creating joint tenancy in himself and Teresa was valid. The court further found that the real estate contract entered into between Teresa and Homer and his wife and the warranty deed from Teresa to Homer and his wife were valid and binding upon the parties.

The record supports the court’s findings as it appears that Virgil prior to his death was in the process of perfecting certain water rights and also litigating grazing rights, and after the death of Virgil, Teresa urged Homer to continue with perfecting the water filing and to appeal a grazing decision. Conversations between Homer and Teresa led to the conclusion that Homer would be unable to continue the litigation part to perfect the water rights unless she was owner of the property. Prior to the transaction between Teresa and Homer he had urged Teresa to offer the “Homestead” to other members of the family and to permit them to bid on it. Teresa was of the opinion that other members of the family would not be interested and that Homer was the proper person to have the “Homestead” inasmuch as he lived near the property and could make use of it. It appears that the terms of the transaction were largely dictated by Teresa and that she spent considerable time drafting the real estate contract and setting forth the terms of the purchase. It also appears" that the purchase price arrived at in the transaction was reasonable in view of the use to which the “Homestead” was put at the time.

The relationship of parent and child does not constitute such a confidential relationship as to create a presumption of fraud or undue influence. The evidence in this case is insufficient to show a reposal of confidence by one party and the resulting superiority and influence on the other party.¹ There is nothing to show that Homer exercised any .undue influence over Teresa. Teresa is an educated woman and had taught school for a period of approximately 24 years.

It should be noted the testimony of the notary public who was present at the time Virgil signed the deed in question did not observe any trickery in procuring Virgil’s signature, and it would appear from her testimony that she was unaware of any concealment of the nature of the papers being signed by Virgil.

Plaintiff had the burden of proving by clear and convincing proof that the conveyance from Virgil to Teresa was obtained by fraud and that Homer either participated in the fraud or had knowledge of it.

The trial court was in an advantaged. position in evaluating the testimony of the witnesses as to its veracity and the weight to be given to it. This being a suit in equity, it is the duty of this court to weigh the facts as well as the law, but we reverse only if the evidence clearly preponderates against the findings of the trial court.²

After a careful consideration and examination of the testimony and other evidence we find no basis for reversing the judgment of the court below, and that decision is affirmed. Respondent is entitled to costs.

CALLISTER, C. J., and HENRIOD, J., concur.

1 . Bradbury v. Rasmussen, 16 Utah 2d 378, 401 P.2d 710.

2 . Givan v. Lambeth, 10 Utah 2d 287, 351 P.2d 959; Brimhall v. Grow, 25 Utah 2d 298, 480 P.2d 731; Bartlett v. Whidden (Or.), 449 P.2d 850.