Kaul v. Meisenholder
Kaul v. Meisenholder
Opinion of the Court
In this action plaintiffs seek a decree of the court adjudging that they are the owners of a five-eighths interest in certain real property. The trial court determined plaintiffs are the owners of the property and defendants have appealed.
The facts- as found by the trial court are as follows: August Weisser died in Tripp County on January 4, 1951. He was survived by his wife, Karolina, six daughters and two sons. August left no will and under the laws of succession the surviving widow inherited one-third of the property and each of the children one twelfth. A family conference was held following the death of August and it was agreed that the eight children would transfer their interest in the property to their mother for her use as long as she
There is but one issue raised in this appeal. Appellants contend that the agreement by the mother to divide such property as remained at her death equally among all the children being in parol cannot be considered for the purpose of aualifying the rights of the mother under the deed which she received from the children.
It should be pointed out in the first instance that no rights of innocent third persons are involved. The plaintiffs are simply attempting to enforce an agreement to which the defendants were also parties.
Under the findings of the trial court the consideration passing to the children for the execution and delivery of the deed to the mother was the mother’s agreement to have the children share equally in her property at her death. The rule in this state, as set forth in the case of Farmers’ Elevator Co. of Colton v. Swier, 50 S.D. 436, 210 N.W. 671 is that recitals as to consideration in a written instrument are not conclusive and it is competent to inquire into the consideration and show by parol or other extrinsic evidence the real consideration. However, this rule has no application where the statement in a written instrument as to consideration is of a contraetural nature and consists of a specific and direct promise to do certain things.
We are of the opinion that the trial court properly considered the oral evidence in deciding this case. Such opinion is not only - supported by our -decisions but the Michigan court confronted with an almost identical state of facts to those presented in this case ruled as did the trial court. That court based its decision upon the same rules as announced in our cases, which seem to have general approval. Ruch v. Ruch, 159 Mich. 231, 124 N.W. 52.
The judgment appealed from is affirmed.
Reference
- Full Case Name
- KAUL v. MEISENHOLDER
- Status
- Published