Blevin v. Mayfield

PEEK, J.

This is an appeal by plaintiffs Herbert Blevin and Ethel Smith, executor and executrix respectively of the last will and testament of John Robert Howlett, from an adverse judgment in an action to cancel a deed from the decedent to Beryl Mayfield upon the grounds of incapacity, fraud and undue influence.

The deed in question was executed by Howlett nine days prior to his death, at which time he was 86 years of age and suffering from arteriosclerosis. Although he was physically ill, the record contains no evidence to indicate that his physical condition had in any way affected his mental processes. On the day following a severe attack, decedent called defendant to his home and proposed that he sell her the 80 acres in question for the sum of $5,000. He stated he was aware that the property was of greater value, but that he wanted her to have it so that she and her husband would have sufficient property to make a success of their farming operation. The decedent made substantially the same statement to Mr. Koehn, a personal friend, and to Mr. Weis, the attorney who drew the deed. The following day in the company of defendant and Mr. Koehn the decedent went to the law office of Mr. Weis. It is uneontroverted that Mr. Weis was defendant’s attorney and previously had done much of the decedent’s legal work. Because of decedent’s physical condition, Mr. Weis left his office and talked with decedent in a car parked in front of his

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office. Weis testified that he thoroughly satisfied himself that decedent was competent and was well aware that the consideration to be paid by defendant was not equivalent to the actual value of the land. The decedent requested Mr. Weis to prepare the necessary documents that afternoon and to do everything necessary to complete the transaction. Although the defendant was not a blood relative of the deceased, she was a niece by marriage and had lived with him during her formative years, and a close familial relationship existed between them.

Plaintiffs’ first contention that the court erred in failing to make a specific finding that the deed had been delivered is without merit. The record shows that the court found that the deed had been properly “executed.” Such a finding, according to section 1933 of the Code of Civil Procedure, means not only that the instrument was signed but that it was delivered. Furthermore, the deed was recorded, thereby raising a presumption that it was delivered