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08/02/83 IRVA J. SIVILS v. WILBUR S. SIVILS

August 2, 1983

IRVA J. SIVILS, RESPONDENT,
v.
WILBUR S. SIVILS, APPELLANT.



From the Circuit Court of Bates County; Civil Appeal; Judge Harold A. Kyser.

Motion for Rehearing Overruled, Transfer Denied September 27, 1983. Application Denied November 22, 1983.

Before Wasserstrom, P.j., Kennedy, Nugent, JJ.

The opinion of the court was delivered by: Wasserstrom

Plaintiff seeks to set aside her deed which conveyed a farm to defendant. The trial court after a non-jury hearing granted the relief sought on the ground of misrepresentation and lack of consideration. We affirm.

At the time of trial plaintiff was a lady 82 years of age who had been a widow for three years. She has one son, the defendant, and three daughters.

Defendant's principal occupation is driving an over the road truck, but he also does some farming work and takes care of horses and cattle. From 1967 to 1979, he was in a cattle partnership with his parents, pursuant to the terms of which the father furnished the cattle herd and one-half of the feed; defendant furnished the other half of the feed and all of the labor. The profits were to be divided equally. Defendant testified that each year during the term of the partnership he paid taxes on one-half of the proceeds from the sale of calves, but that he turned over his share of the proceeds to his parents. He says that the money so turned over was in the nature of a loan which the parents were to repay with interest. Defendant introduced in evidence a written document, Exhibit 3, which was signed by the parents and which states: "This is to verify that all monies from the sale of cattle sold in Wilbur S. Sivils name from the 1st day of January 1967 thru January 1979, according to agreement entered into on the 1st day of January 1967 between Clyde O. Sivils, Irva J. Sivils and Wilbur S. Sivils, was returned to Clyde O. Sivils and Irva J. Sivils at the time of said sale." Plaintiff denied having received plaintiff's share of the proceeds of cattle sales, and she denied in her testimony owing any money to defendant.

Part of the property owned by plaintiff after her husband's death was a 150 acre farm valued at $150,000, and which is referred to in the evidence as "the home place." After her husband's death, plaintiff executed a deed to this home place to her four children, but reserved the right to use it and the right to convey it during her lifetime. Defendant testified that plaintiff had told him that she wanted him to have the home place as his share of the family inheritance. Plaintiff, on the other hand, testified that while she desired for defendant to have the home place, her thought was that he would buy out his sisters' interests.

About a year prior to the time of trial, plaintiff went to live in a rest home in Grandview. The cost for that care was approximately $1,000 a month. Plaintiff apparently exhausted the amount of cash available to her, and it became necessary to sell some piece of property to cover her expenses. The evidence indicates that an argument developed between defendant and the sisters as to what property should be sold. The sisters wanted to sell the home place, whereas defendant thought that the home place should be retained and one of the other farms sold. Defendant testified that he discussed this matter with his mother, at which time plaintiff said she did not want to sell the home place. Defendant then determined that the way to accomplish this purpose was for her to deed the farm to him. He testified that the deed was prepared at plaintiff's insistence.

On September 19, 1981, defendant presented a deed on the farm to plaintiff for signature. Plaintiff's eyesight was so poor that she could not read the document, and she testified that defendant told her that the document was a lease on pasturage for his horses. Plaintiff further testified that she signed the deed in reliance upon that representation.

Defendant on the other hand, testified that he explained to his mother that the deed was a conveyance of the home place to him. Defendant's testimony in this regard is supported by that of the notary public and of the notary public's husband. Both of them testified that the notary asked plaintiff whether she understood that she was signing a deed to her property and plaintiff responded affirmatively.

Defendant further testified that when his mother signed the deed he told her that the conveyance would cancel the principal and interest which she owed him for the cattle money. He says he also promised her at that time that in consideration of the deed he would take care of her support for the balance of her lifetime.

Shortly after the conveyance of September 19, 1981, further conversations took place between plaintiff and members of her family, which resulted in the filing of this lawsuit on October 5, 1981. Defendant testified that soon thereafter plaintiff told him that the sisters were pressing her to obtain a reconveyance from defendant of the home place and that if he would do so thereby enabling her to give it to the girls, that would end all of the argument. Defendant refused, saying: "This is what we agreed on and I think that this is the way it should stay."

In his first point on appeal, defendant contends that the court's findings of fraud and lack of consideration are contrary to the weight of the evidence summarized above. In his second point, he contends that the court erred in denying his after trial motion for leave to amend his pleadings so as to assert a counterclaim for the money which he alleges ...


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