(dissenting). This is an action which is prosecuted by an administrator to set aside the assignment of a certain mortgage, and to secure possession of the notes secured thereby. The plaintiff alleges the execution and delivery to the deceased of the notes and mortgage by one Larson, and that the same were the property of the deceased at the time of her death. The defendant, on the other hand, claims that the notes and mortgage were duly assigned to him in payment of services rendered and money expended, and in consideration of his promise *507to care for the deceased during her life. The trial court found for the defendant, and the plaintiff appeals.
I can see no legal reason for reversing the judgment of the trial court. The only questions involved are whether there was a delivery, and whether fraud and undue influence were proved.
As far as fraud and undue influence are concerned, the plaintiff introduces no positive testimony, but inferences merely, and opposed to these inferences are not merely the positive denial of the defendant himself, but the positive .testimony of the doctor, who last attended the deceased, of the two persons who witnessed the assignment of the mortgage, and the indorsement of the notes, and of the justice of the peace who acknowledged the assignment. These witnesses are, with the exception of the doctors, the only disinterested witnesses in the case. They testify that the assignment was willingly signed and without any fraud, compulsion, or duress, and that the deceased was in a proper mental condition to execute the same. Their testimony is also positive that the assignment was made for the purpose of paying the said Oscar for his services rendered and for his care of the deceased.
Though the doctor at Palermo testifies that before the deceased left Palermo she acted in an eccentric manner, he in no place testifies that she really lacked in legal capacity. The doctor in Wisconsin testifies that shortly before the execution of the instrument, although her vitality was not very good, he could see nothing unusual as far as her mental •capacity was concerned.
There is, in short, in this case nothing on which to base any claim of duress or fraud, except the fact that until shortly before the assignment of the mortgage the plaintiff had taken but little interest in his mother. The testimony, however, shows that this was true of all of the children, and that this was no doubt due to the attitude of mind of the deceased herself. As far as I can learn, indeed, there are no equities in the case. Since the deceased left some other property, namely, her claim in North Dakota, and a house, there seems also to have been some provision for her remaining son and daughter.
The case, indeed, is a peculiar one. Throughout it seems to illustrate not the pleasant and usual simple and unselfish annals of the poor, but those which are sordid and selfish. The Lindquists were natives of Sweden. They emigrated to this country when Oscar was but a child, and *508Oscar seems to have worked out from early boyhood. They settled at Trade Lake, Wisconsin, and lived there for a number of years. On or about October, 1907, John Lindquist, a son of Anna Stina Lindquist, took up a homestead in Mountrail county, North Dakota, and died before ho perfected the proof. Thereafter his mother, the deceased Anna Stina Lindquist, came out to Mountrail county, and proved up on the claim, and the mortgage in question seems to have been obtained by her on the sale of this property. Later she herself took up a homestead north of Palermo and was living on it shortly before she was removed by the son Oscar to his home in Wisconsin, Oscar having been notified that she was sick and needed help. She had lived in North Dakota from 1907 to the fall of 1912, during which time Oscar seems to have visited her once, and the other children not at all, though the daughter appears to. have sent her. a little money. This daughter was married. One son was a lumberman in Wisconsin or Minnesota, and the others seem to have lived in Wisconsin. This neglect, however, seems to have been due largely to the deceased herself, as she seems to have evidenced but little affection for her children; and the fact that she proved up one quarter section for her son John, and took one for herself, shows her to have been possessed of an independent mind. At the time she was taken sick, one J. B. Hage notified her son Oscar Lindquist of the fact, and he immediately made preparations and came to Palermo, where he found her suffering with cancer, and took her home. It appears that it was necessary for him to borrow $100 for the purpose of making this trip. As soon as he had the business settled up he took her to his home in Trade Lake, Wisconsin, and after she had been there two or three days he called Dr. Albert Swanson, who told him he diagnosed the ca.se as cancer of the stomach. According to Oscar’s testimony, and this seems to have been corroborated by the testimony of the witnesses Ei’ic II. Johnson and John E. Anderson, she told Oscar that she was pleased with the care she was getting and that she wanted to make a will in his favor. Oscar told her that he thought it wasn’t right to take all, but if she wanted to it would be better if she assigned to him the certain notes and mortgage in controversy. A few days after this Oscar went over to Johnson’s, and the latter and one Anderson went out to have the instrument executed. At about the same time a justice of the peace, Christensen, took the acknowledgment. This assignment was evidently given to Oscar either at *509the time or soon after, and it was recorded within a few days. The notes were returned to the trunk from which they had been taken, but to which Oscar had access. It was, according to his testimony, agreed between him and his mother that he was to take care of her during her natural life, and this he did, and she stayed at his home until the 2d day of February, 1913. Much is made by counsel for appellant of the fact that Oscar did not send his mother for treatment to Rochester, Minnesota. If, however, we consider heir advanced age, and the fact that a successful operation at such an age would be an impossibility, we see nothing peculiar about this. Much also is made of the fact that the defendant, Oscar, had been somewhat selfish in his dealing in the past, and had had some controversy with his mother and sisters over the estate of her son John, who had died some time since. The proceeds of this estate, however, had been given to his mother, and as there seems to have been no love lost between the members of the family generally, the fact is not controlling. It showed a selfish man, but it was not sufficient to overcome the positive testimony of the witnesses Eric H. Johnson and John E. Anderson, that the assignment was executed willingly and without fraud; nor is there anything in the testimony, save in reflections upon the character for generosity of the defendant, which negatives his testimony as to what occurred. It is also to be remembered that the assignment was acknowledged on the 21st of December, 1912, before O. T. Christensen, a justice of the peace, and this acknowledgment must be given some weight.
Though, indeed, it is unquestionably the law that transfers of this kind should be carefully scrutinized by the courts of equity, I find no proof of undue influence in the case which is before us. I see no reason, indeed, why the deceased should have been solicitous for the welfare of her other children, and, as I have said before, some property was left for them.
It is also maintained that a gift obtained by a child from a parent, to whom he stands in a confidential relation, is prima facie void, and the burden of proof is on the donee to show that it was a free unbiased act of the donor. This, undoubtedly, is the law; but not only has the burden of proof been met, but the proof tends to show that the transfer was for a valid consideration, namely, money expended, care bestowed, and the promise to take care of the deceased during the remainder of her life. *510See McKillip v. Farmers State Bank, 29 N. D. 541, 151 N. W. 287, Ann. Cas. 1917C, 993; Stufflebeam v. Sellensky, 135 Iowa, 338, 112 N. W. 815; Altig v. Altig, 137 Iowa, 420, 114 N. W. 1056.
Nor is there any merit in the contention that no delivery is proved. The evidence shows that .the assignment was recorded,by the defendant a short time after it was made. He testifies that it was given to him. lie also testifies that he was told that he could take the notes from the trunk whenever he desired. They were in his possession at the time of the trial, and prior thereto. There is certainly a presumption of due delivery, and this presumption has not been overcome. Hall v. Cardell, 111 Iowa, 206, 82 N. W. 503; Cecil v. Beaver, 28 Iowa, 241, 4 Am. Rep. 174; Nowlen v. Nowlen, 122 Iowa, 541, 98 N. W. 383.
It is to be noted that at the time the assignment of the mortgage was made the notes were also indorsed by the deceased, and the indorsement was witnessed by the same parties that witnessed the assignment of the mortgage.
No point can be made on the ground that part of the testimony of the defendant, Oscar Lindquist, involved a transaction with a deceased person, as this testimony was either elicited from the witness by the plaintiff himself, or, if given on cross-examination, was not objected to, ■
I am of the opinion that the judgment of the District Court should be affirmed.