Fink v. Van Fossen

Per Curiam,

The learned judge below found as a fact that “ there is no evidence of what took place at the time of the execution of the deed in question other than that afforded by the document itself ; nor is there any evidence that the purchase money was *365not paid in cash or some agreed upon equivalent therefor, nor that the execution of the deed was induced by fraud or undue influence, nor any from which those facts or either of them could be fairly inferred.”

It is objected to this finding by the appellant that it is incorrect because there was evidence as to conversations between Fink and his grantee, Kicherer, as to the terms on which the conveyance was to be made. The witness stated that the conversation to which he testified was “ just before ” the execution of the deed, but on cross-examination he said it was “ along through the summer, towards fall, I don’t remember the date.” The deed was made on September 18, and the conversation testified to was not connected closely enough with the execution to make it part of the res gestae or sufficient to vary the terms of the wilting.

Appellant further calls attention to the declarations of Kicherer in his last sickness to Fink: “ I cannot live to fulfil my contract — you will have to take your property into your own hands,” etc. The utmost that these declarations amount to is that Kicherer thought Fink had a right to rescind the conveyance. Whether in view of the act of 1856, and the absence of any evidence of fraud, Fink had any such right or not, we need not consider. Conceding for argument sake that he had, he chose not to enforce it. The judge found on this point that “ after the date of the deed both Fink and Kicherer treated the property as belonging to the latter; Kicherer made improvements upon it, and it was assessed in his name from 1884 to 1890, inclusive, and in the name of his ‘ estate ’ from 1891 to 1897, both inclusive, and from 1889 to 1900,both inclusive, it was assessed in the individual name of Thomas Fink, who was at that time guardian of the estate of Lucy M. Kicherer, the child and heir of Frank Kicherer. There is no evidence as to how or why the assessment was so changed.”

This finding disposes of any claim the appellants as heirs of Fink might have to do in his right what he clearly refused to do for himself.

Decree affirmed with costs.