Caruso v. Parkos

262 Neb. 961, 637 N.W.2d 351 (2002)



In an appeal of an equitable action, an appellate court tries factual questions de novo on the record, provided that where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge hears and observes the witnesses and accepts one version of the facts rather than another. 


Prior to 1997, land was owned by a mother, and two sisters. The mother conveyed her interest to the two sisters, so that one sister could buy the property from the other sister who needed money for surgery. The mother's lawyer testified that he discussed the transaction at length with the mother, she was competent, not under any undue influence and intended to transfer the property so that one of the sisters could get money for surgery. The mother's lawyer forgot to record the deed. The brother was aware of the previous conveyance, but four months later he persuaded the mother to transfer the land to him. Plaintiff sister filed a quiet title action in the district court against defendant mother and defendant brother. The brother filed a motion for summary judgment, which was overruled, and the case proceeded to trial. The district court quieted title to the subject property in the sister, and the brother appealed. The judgment of the district court was affirmed.


Did the evidence presented at trial support the district court's conclusion that the mother did intend to transfer title to plaintiff?




The Montana Supreme Court found that: (1) the sister proved a valid delivery of the first deed; (2) the brother failed to show that the first deed was a result of undue influence or that he was a subsequent purchaser in good faith without notice; and (3) title to the property passed on the date of the first deed, making the second deed a nullity. The overwhelming weight of the evidence supports the district court's conclusion that the brother was aware of the June 20, 1997, deed prior to the October 27 conveyance. The district court, which had the opportunity to hear and observe the witnesses, did not accept the brother's version of the facts, and the court considered and gave weight to this in its de novo review. 

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