DocketNumber: No. 21623
Citation Numbers: 107 Neb. 570
Judges: Aldrich, Graves, Morrissey, Plansburg, Rose, Welch
Filed Date: 1/26/1922
Status: Precedential
Modified Date: 9/9/2022
This is an appeal from the finding and decree of the
The action was in the nature of a bill in equity instituted by plaintiff to set aside certain deeds of warranty executed by Margaret Lowrie on April 20, 1909, and duly recorded on April 22, 1909, conveying title to the respective parcels of land to said Elmer L. and Grover O. Albaugh, who were grandchildren of Mrs. Lowrie, the plaintiff being a son of Mrs. Lowrie by her first husband, The action was commenced in April, 1917, and based on alleged fraud and undue influence of ■ one George W. Albaugh, a son-in-law, over said Margaret Lowrie, and that the deeds to said Elmer L. and Grover C. Albaugh Avere never delivered.
The evidence discloses that Margaret Lowrie, two sons by a former marriage, and her husband, came to PaAvnee county and settled upon the north half of the north half of section 1, township 1, range 12, as a homestead, about the year 1867; that the plaintiff, Frank Bruce, and a brother two years older, then boys 13 and 15 years of age, respectively, lived Avith their parents and industriously improved and tilled said land; that, later, two daughters Avere born to Mr. and Mrs. Lowrie; that the elder of the Bruce boys died at the age of 22, unmarried,that the plaintiff manned in about the year 1878, and rented the homestead,' living Avith the family, and so continued to live until the year 1890, at which time George W. Albaugh manned Janie Lowrie, and also-moved in with the Lowrie family. ■ Troubles arose betAveen Mr. Bruce and Mr. Albaugh, resulting in Mr. Bruce renting a farm in the neighborhood, and a year or two-later moving permanently to the state of Oklahoma-
To George W. Albaugh and wife, Janie, were born two •sons, September 8, 1892, Grover C. Albaugh, and in April, 1903, Elmer L. Albaugh, and on the 22d day of May, 1903, Janie Albaugh died.
On March 14, 1916, Grover G. Albaugh,. then unmarried, executed a mortgage to secure the sum of •$1,500 to defendant, Margaret Wishart Miller, upon the N.W.14 of the N.W.14 of said section 1, which mortgage was duly recorded and is in full force and effect. It is •stipulated that this mortgage Avas taken by Mrs. Miller without notice or knOAAdedge of the claims of Prank Bruce on said lands.
Plaintiff alleges that the alleged fraud Avas not discovered until September 15, 1916. It Avill be observed that all of the mortgages executed by George W. AJbaugh to Margaret LoAvrie and released, as disclosed by the record, conveyed all or a part of the W.% of the N.E.14 of said section 1, and not the land in controversy, the title to which was retained by Margaret LoAvrie until she •executed the deeds in controversy on April 20, 1909. It
This case is tried de novo, and the writer has carefully read the testimony of all the witnesses. The record discloses that after October, 1890, George W. Albaugh and wife, Janie, continued to live with Margaret • Lowrie up to the date of Janie Albaugh’s death in May, 1903, and the defendant Grover C. Albaugh was born at the home of Mrs. Lowrie on September 8, 1892, and Elmer L. in April, 1903; their mother died May 22, 1903, and after that time George W. Albaugh and his two boys continued to operate the farm and live at the home of Margaret Lowrie. Mr. Albaugh married a second time in 1905 and continued to live with Mrs. Lowrie and the boys until his death on the 7th day of February, 1916. Mrs. Lowrie died in September following. Their relations were agreeable and harmonious except an episode related by the witness Ida Jones.
The witness for the plaintiff, John Marshall, referring to a conversation with George Albaugh with reference to improvements he was making, testified: “I said, ‘George, I’d hate to be putting improvements here; when the old lady is gone, Bruce will come in.’ ” To which George Albaugh is supposed to have replied: “It will be damned little he will get out of it.” Beferring to a conversation
Many of the witnesses for the defense testified of hearing Margaret Lowrie at different times, before and after the execution of the deeds, 'say that she intended to deed “or had deeded the forty on which the buildings were located to Elmer, and the other forty to Grover.” And all the witnesses, without exception, who testify on that subject, assert that Margaret Lowrie had a good active mind and alert, and conducted her own business without assistance or advice, and was not easily influenced. To the same effect was the witness, Arthur H. Pelton, cashier of the State Bank of Dubois, who had business relations with Margaret Lowrie many years. He said, on the date of the execution of the deeds in controversy, that she came to the private office of the bank alone, and told him what she desired to do with the land and he made out the deeds, exhibits 8 and 9; she signed and acknowledged the deeds, and took them to the lobby of the bank, where she delivered them to George W.
In view of the fact that Margaret Lowrie, long before the deeds were executed, told John Marshall, Mary S tor ant, Ola Albaugh, and R. H. Church, that she intended to make the conveyances, and that during the seven years following the execution thereof, and. before her death, she related the fact to witnesses Henry Hunzeker, Louis Kaiserman, and Carrie Albaugh, it leaves no .room for doubt that delivery of the deeds, as above related by the witness Pelton, was in harmony with the purpose and intent of Mrs. Lowrie to convey the title to her grandsons.
“The delivery of an instrument is a question of fact to be determined by ascertaining the intention of the parties thereto.” Home Fire Ins. Co. v. Collins, 61 Neb. 198.
The question of mental capacity is not in this case. The plaintiff testifies that his mother was managing her own business and was able to get around and look after it until the latter two years of her life.
The only remaining question is: Did George W. Albaugh have such influence with his mother-in-law as to cause her, contrary to her wish and will, to convey the property in question to his sons? There is no direct testimony that he ever tided so to do. The circumstances were favorable, as they lived together for about 25 years, and no doubt he was unfriendly toward plaintiff. There is disclosed a close confidential and friendly relationship between Mrs. Lowrie and her son-in-law. She had previously conveyed to him the other eighty for about one-third of its value. Her motive for so doing is not disclosed. The $1,000 Avhich Mrs. LoAvrie said she intended plaintiff should have, at the same time, and to the same persons she said she would deed these lands
“Where the evidence clearly discloses competency and perfect freedom on the part of a grantor in making a deed, the court will not be justified in setting it aside.” Hacker v. Hoover, 89 Neb. 317. Brugman v. Brugman, 93 Neb. 408; 18 C. J. 240.
It follows that the decree of the district court is right and is
Affirmed.