Having given this entire record a very careful examination, I cannot concur in the majority opinion. To fully set forth my reasons would unduly extend the record. I will only refer to a few of the reasons which appear to me to be significant and which make the majority opinion incorrect.
In the first place, the original petition filed in this cause is based upon the theory, briefly stated, that Marie Smith frightened Carlson into making this deed, by making him believe that some of the women with whom he had been flirting were about to bring breach of promise suits against him.
In a substituted petition, filed by another attorney, it is claimed that Marie Smith secured the execution of the deed by frightening Carlson concerning the dangers of the voyage to Sweden, and then finally, the plaintiff changes front through still a third attorney, claiming that the facts constitute a constructive trust under which Marie Smith holds the title for the plaintiff Carlson.
Moreover, it is significant that Carlson went to his own attorney without the knowledge of Marie Smith and laid the whole matter before him and that on the following Monday, Carlson asked Marie Smith to go with him to the office of his attorney, that at that time Carlson brought to his attorney the remaining necessary information to have the deed drawn. Marie Smith did not even know that Carlson had been to see the attorney and had laid the whole matter before him.
The deed in controversy was prepared by Carlson's attorney, read over by Carlson and executed by Carlson before his attorney and acknowledged by him and then he took Marie Smith and together they went to the courthouse where the instrument was filed and recorded.
Out of the various inconsistent positions of the plaintiff in this suit, it can perhaps be stated that he now takes the position *Page 241 finally that Marie perpetrated a fraud upon him at the time the deed was delivered to her in the office of plaintiff's attorney.
In order to sustain the majority opinion, the majority must find that in the office of Carlson's attorney, Marie, at the time she received the deed from Carlson, fraudulently determined in her own mind she would not give the title back to the plaintiff if he should demand it on his return from Sweden.
As I have read and re-read the record, I am unable to find any evidence upon which it can fairly and reasonably be said that Marie had any such fraudulent intention or thought in mind at the time she received the deed. Moreover, the record supports the theory that Carlson never intended that Marie should give him back the title to the property. The deed contains this clause:
"The grantee in consideration hereof agrees to support, care for and maintain the grantor without charge during his lifetime if he so desires."
There is in the instrument a complete reservation to the plaintiff of a life estate and the returns and profits of the land in question. There is evidence in the record from which it can be readily concluded that Carlson for some time after his return from Sweden intended to comply with these terms in the deed and make his home with Marie, but unfortunately for him and for all parties concerned, he went to Boone and he crossed the path of some designing women who, of course, cared nothing for him, but who anxiously craved the broad acres, the title to which he had conveyed to Marie.
There is evidence that Carlson had gone back to Boone from Waterloo for the purpose of renting his home and coming back to Waterloo to live with Marie.
As I read this record, the real test is whether at the time Marie accepted the deed in the attorney's office at Boone, assuming the plaintiff's story concerning a return of "the papers" is correct, she had intended and had in mind that she would not turn the property back to the plaintiff at any time. If she accepted the deed under such circumstances, it was accepted in fraud of the rights of the plaintiff. If the plaintiff has satisfactorily shown, as he is required to do under the established and well recognized rules, that she thus received the instrument, *Page 242 a constructive trust is proven; otherwise, whatever other remedies, if any, the plaintiff may have, he is not entitled to relief in this action on the basis of a constructive trust. Manifestly, the burden of proving the fraud is on the party alleging it, and in order that the plaintiff can recover, this fraud must appear by clear, satisfactory and convincing evidence. It is not sufficient to warrant affirmance of this case to merely find on the record before us that Marie promised to turn back the land or, as they say in the record, "Give back the papers," and that Marie has failed and refused to do so. It is necessary to prove by clear, certain and convincing evidence one additional fact, to wit, that at the time she received the deed and promised to return "the papers" or the title, if she did so promise, she did not at that time intend to return the papers or the title, but that the promise was a part of a scheme whereby to fraudulently induce the delivery of the deed to her.
The plaintiff's own evidence is most unsatisfactory and inconsistent. The life estate and the contract for support is utterly inconsistent with the present position of the plaintiff and his attorneys that the deed in controversy was a mere temporary makeshift and protection against the death of the plaintiff on his trip to Sweden. Manifestly, if he did not return alive, the reservation of a life estate and contract for his support could be of no value whatsoever. It could be of value to the plaintiff only if he returned alive from Sweden, and, therefore, the insertion of these clauses in the deed are most eloquent and persuasive testimony in support of the position of Marie and in irreconcilable conflict with the testimony of the plaintiff and that which was offered in his behalf.
These solemn declarations in the instrument were written by the attorney selected and paid by the plaintiff, at a time when litigation was not in contemplation and long prior to the time when the plaintiff found the advisability, if not the necessity, of again becoming the title owner of this land in order to induce some one of his lady admirers to become his lawful wife. It very satisfactorily appears in the record that the plaintiff was fond of Marie and trusted her. She is the one upon whom he called in times of trouble and she always responded. She had lived with him and worked for him for many years, hard and faithfully. He had given her nothing, except a very meager *Page 243 education and the bare necessities of life, during the time she lived with him. In his calm and serious moments and upon advice of counsel, he must have realized that in his declining years a perpetual home with the girl who had so faithfully served him and whom he trusted and admired, would be a very desirable thing, and a fair and reasonable compensation therefor would be giving to her the title to the property for her use after he passed away.
Undoubtedly, were it not for the well-known shortcomings of some aged men with fortunes, who are left widowers, this course would have been carried out to the end. It seems quite likely that if the importunities of designing women and the false heart throbs of old age had not interfered, he would have carried out the program. The record shows that Marie Smith stands ready, willing and able to furnish the plaintiff with support and a home, as specified in the deed.
The most consistent inference to be drawn from the entire record is that, in view of the long and faithful service of Marie to the plaintiff and his wife, the plaintiff's lack of children, his advanced years, his liking for and his confidence in Marie, and his prospective trip abroad to visit the home of his youth, in consultation with his attorney and as a result of his legal advice, the instrument containing an absolute conveyance and warranty with a reservation of a life estate, and the promise on the part of Marie to furnish him a home and support during his lifetime, was entered into in good faith on the part of the plaintiff and with the idea that when he returned from Sweden he would take up his abode with Marie, using the income of his farm and his other property as he might see fit, but that on his death Marie should have the title to the farm. The attorney must have known and understood, when he placed the life estate reservation and the contract for support in the deed, that the plaintiff so intended the transaction, and when the instrument was read by the plaintiff's own attorney to him in the presence of Marie and the plaintiff said he understood the document, the only reasonable conclusion to be drawn from the entire record is that the plaintiff did not then expect the return of the property. Certain it is the record does not support a finding that Marie Smith was guilty of such fraud as must be shown before we can hold that she is now a trustee ex maleficio. *Page 244
At all events, the plaintiff has failed utterly to successfully carry the burden imposed upon him to satisfy this court that Marie Smith, at the time she received the deed in the office of plaintiff's attorney, had in mind and intended not to return "the papers" or the title to the property. Having so failed, the plaintiff cannot recover on the basis of a constructive trust. I would reverse.
ALBERT, KINDIG and WAGNER, JJ., join in this dissent.