*1 jury charge I think understood what state relied as did also defendant and his counsel. judgment my opinion
In should be affirmed.
MR. JUSTICE METCALF: foregoing dissenting opinion concur of Mr. Justice
Angstman. Appellant.
BAIRD, Respondent, BAIRD, No. 9023. Submitted March 1951. Decided June 1951. (2d) 232 Pac. 348. *2 Mr. Pierson, Smith, Dalton T. Rimel, Messrs. Boone & Mr. Bussell E. all Smith, Missoula, appellant. for Root,
Messrs. & Shallenberger Paddock, Jewell and Messrs. & and Mr. Shallenberger, William F. Missoula, all of re- spondent.
Mr. and Mr. Shallenberger Smith argued orally.
MR. ADAIR: CHIEF JUSTICE equity seeking
Suit in restitution for advancements made spouse to the other. one Byberg, widow, a
Mrs. Emma unattached boarded 4:00 Yakima, Washington, at about passenger at o’clock coach at 10, 1947, her home morning enroute to of December man first herself Bismarck, North Dakota. She seated beside Harold wherein sat immediately behind one occupying a seat to his home from Seattle Baird, was enroute 37, single, who Byberg Mrs. whom passenger a while Missoula. After Byberg Mrs. whereupon coach sitting out of went his seat and Baird, into moved aup conversation struck Mis- At at his destination. arrived him until visited with Ryberg continued on left the train. Mrs. soula, Baird Bismarck. Ryberg Mrs. Christmas card.
At Christmas Baird sent Ryberg by long dis- January 3, Mrs. called Baird On returning telephone him and informed that she was tance the west coast via Missoula. January 16, Ryberg
On in Missoula Mrs. arrived where she hotel, attending days, staying remained for three at a or four meeting visiting shows with Baird and with his mother and other relatives.
Baird, II, veteran of "World War with the aid a G. I. loan, had built small Beverly four-room home at street Missoula, doing carpenter all the work and labor thereon residing himself and there he and his mother were time of Mrs. Ryberg’s January visit. Following such visit Mrs. Ryberg proceeded to the states of Washington, Oregon and California where visited during relatives which time she frequently called and talked with Baird long over the *3 distance telephone. February
In Ryberg Mrs. returned to Missoula for a second visit proposed at which time she go Baird with her Salem, Oregon, to for a Chevrolet automobile which shе had left with certain of her stating relatives she did not care to have them longer use the machine. On February 21st the two went for the car and on the following day Baird, accompanied by Ryberg, Mrs. drove it from Salem to Missoula where it was by Ryberg left Mrs. who returned to her home in by Bismarck train to settle the of recently estate deceased husband. Ryberg From there Mrs. by long called Baird telephone distance average on an of once a week. May 1948, during
In telephone conversations, one of such Ryberg planned Mrs. learned Baird fishing trip had a for fishing May 23rd, opening day Both season. Mrs. Ryberg Ryberg anglers Mrs. and Baird were ardent when fishing trip expressed on the Baird accompany a him desire to from Bismarck May Ryberg Mrs. arrived 22nd, consented. On North in purchased a watch bringing with by airplane 25th, May gift. On a Baird as presented she Dakota which she re- where Bismarck in her home returned to Ryberg Mrs. again, Missoula came when she couple weeks a mained but where, Beverly street at moving Baird’s home into home with made her resided ensuing three months mother. Baird and his savings opened personal a Ryberg 1948, Mrs.
On June in name of of Missoula National Bank First account $11,- totalling checks depositing therein Ryberg Baird” “Emma opened bank she in the same the same date and 000. Also on Ryberg “Emma name of checking account individual aforesaid $3,000 from her transferred Baird” wherein she Mrs. accounts, opening time savings At the account. Mis- had come to Ryberg at bank that she told the officers ac- reason she desired her get soula to married and for that placed counts and carried in the above form. later, Mrs. September 21, 1948, being
On three months over marriage Superior, Ryberg and Baird a license at obtained justice Montana, day there married and that peace. long prior Ryberg
At and for Mrs. time name; Beverly knew that Baird’s at 118 street in his home stood by mortgage that it was encumbered which he had executed $5,500; I. loan employed secure G. that Baird was Department Missoula; the United States Postal that his take- salary slightly $3,000 year home per and that excess of only salary such constituted source of income. Prior to their marriage, Ryberg Mrs. had informed Baird that she owned standing consisting in her name and considerable Bismarck, bonds, Dakota, North cash, government a home *4 situate. property there and other preceding their mar- 14, 1948, being the week September
On in Mis- joint checking account the couple opened a riage, the deposits made a series of thereafter Baird bank wherein soula salary Septem- warrants. Also his from received with government bank bonds Ryberg ber Mrs. certain delivered tо re- by treasury department accompanied application to the her payable questing the as to make them reissuanee of bonds so and Upon to herself Baird their reissuance as co-owners. joint safety deposited deposit return the box bonds were couple which the had bank and rented to which each had access.
Following Ryberg' urged their Emma Baird her pay 3, husband to 1948, off his G-.I. loan and on November voluntarily $5,500 savings withdrew from her individual account deposited and couple’s joint checking such sum in the account pay wipe enable husband to and G. out his I. loan. following day, On 4, 1948, November knowledge with the wife, and paid consent of Baird his debt full with a check by joint drawn him checking on receiving account in return release satisfaction of the mortgage given which he had repayment secure the of the loan. In December Emma Baird dеcided to either sell or trade in her Chevrolet a new January on ear and 27, 1949, Baird, on knowledge and consent wife, of his placed an order for a new making Pontiac automobile $200 deposit thereon with a check by drawn joint him the checking account.
On March the new Pontiac arrived Baird, the knowledge and consent wife, accepted of his delivery paying balance due on purchase price with funds obtained from the sale jointly of some government held bonds. Follow- o0f ing purchase of the new car the wife sold her Chevrolet for $1,050 and proceeds invested the government entire bonds. April 1949,
In fishing a small boat and an outboard motor purchased paid a check drawn Baird on the joint cheeking account. Thereafter the boat and motor were by Baird and his much used wife on the fishing trips numerous they spring together which shared and summer. marriage, gave away many Emma Baird Subsequent to her presents including woman, and two suits to one new coat —a costly another, guns husband, vari- dress to —two *5 sundry articles and various delivered persons she ous other such merely “stored” with according her version were which, them Baird, delivered to according were persons which, but gifts. as volition, quit Baird, of her own September 9,
On Emma telling family moved out of the domicile husband and family through Upon leaving him. Baird that she was the wearing apparel personal all her and home she took with her many effects as as articles for which had no immediate well including mower, trailer, need the lawn a two-wheel auto tarpaulin, washing machine, wedding presents canvas as well platform as $79 rugs. rocker and various dishes and brought This turn of sharing events to a sudden end the fishing her husband of excursions, home, the the the new Pon- car, tiac the boat and motor, outboard and September 10, 1949, being day the him, after she left Emma Baird commenced this equity suit in against her seeking husband a decree of the ordering court sale, public auction, of the husband’s dwelling Beverly at 118 street, the car, Pontiac fishing boat and motor and ordering further proceeds that the of such sales impressed be with a trust in her favor in the amount $8,913.50, for advancements claimed to have been made to her husband marriage, their complaint alleging that such after advance- procured ments reason of false and fraudulent repre- sentations during made couple’s courtship prior and to their marriage.
The appeared husband and defended. A trial of the issues sitting before the court jury without a findings resulted in fact, conclusions of law and plaintiff. decree for From the decree appealed so entered defendant assigning has аs error general denial of his demurrer complaint, making to the findings trial court’s and conclusions and rendering entering against the decree him. and designated portions strike appeared Defendant motion to part. allowed Next de- complaint which motion was complaint to the interposed demurrer general fendant certain admitting overruling he answered thereof including those complaint denying others averments of the representations. accusing making fraudulent him of false or pleaded plaintiff complains are representations whereof “III. paragraph complaint in the third which reads: of her prior intermarriage purpose inducing That to said falsely marriage, consent to said the defendant *6 fraudulently honest, represented he honor- to that was man, able wife, that he wanted her be loved and to that happy, he wаnted to make a home her and lead normal for life, married from and concealed her his real character. That plaintiff upon representations believed and relied said thereby marriage; was induced to consent to said that at the marriage, time of said representations that believed said true; plaintiff each them of was would not have con- marriage, sented to said said representations had not been made to her said concealment practiced had not upon been (Emphasis her.” supplied.) representations
The pleaded so are mere conclusions of the pleader tendering no wholly issue and insufficient to plead either a void or marriage. voidable The record shows the marriage fully consummated. Following its per formance the husband and wife constantly had consorted under one and the same year, roof for a lacking days, eleven immedi ately preceding the commencement this suit. The record shows the wife to be an intelligent possessed mature woman faculties, all her previous considerable wealth long experience matrimony in both and business. general repre pleaded sentations and upon plaintiff relies, which fall far being short of such as would either vitiate marriage or entail liability part spouse. on the of her representations Such do not go marriage they to the essence of the contract nor do constitute fraud. actionable against only equity
It fraud actionable which a court of presumed. fraud is jurisdiction has to relieve. Such never pleaded proved. and it must be must It be 830, the (2d) 827, S. Longtin Longtin, Sup., In N. Y. more “Assuming alleged much complaint court said: that the repeatedly and unmis- clearly than it that dеfendant had does that she takably plaintiff and promised love and cherish the allegations and intention, had such never in fact had such adequate proof support entitle thereof would not ground fraud, to an even annulment of his on the though might promises well claim that he relied such they and would not if had not have married defendant been made. Such go marriage. fraud does not essentials [Citing follow, therefore, allegations It must cases.] complaint regard in this do not state facts sufficient * * * constitute cause of in fraud. action Courts have never annulled marriage change because mere of a of mind or for a ’’ misrepresentation of a mental state.
The contract marriage gateway forms the to the status of marriage. entering In into such assuming contract and such status, parties “the take each better, other for for for worse, richer, poorer, to cherish each other in sickness and in health; consequently mistake, whether resulting accident, generally indeed from fraudulent practices, respect *7 character, fortune, health, like, or the does not render void # * ”::=* * what is done. and Lord Stowell adds: ‘A man who means upon to representations act such verify should them his inquiries. own The presumes law that he uses due caution in a matter in which his happiness for life is materially so in volved, and provision it makes no for the relief of a blind * * * credulity, may however it have produced.’ been If the agree man should in words with the woman to be her husband only on rich, condition of her proving wise, so so virtuous, so ,if healthy, yet, so a standing society; of such in he afterward nuptials representing possess celebrates the on her herself to them; stipulated qualities, in truth while she is destitute of law, still, celebration, says in he to her effect and such my wife, you qualities you ‘I have or take to be whether words, not.’ In other he me or not, you have whether deceived 130 marital carry, into such a condition To
waives the condition. contrary be purpose, and spirit its and violate relation would understood, rightly objects marriage, good morals. The and, if the mentioned; kind all considerations of transcend bargain by reason jewel annul the purchaser of could not a instead plain envelope paper, a sending it him in the seller husband one, contemplated, surely the figured of a as — marriage, though he permitted repudiate his not be should secondary thing, to which should discover an absence of some placing given affections, them where he had instead Ed.), (5th promised.” Bishop Marriage Divorce had 167, 143, 144. 168, pp. secs. A. 124, 126, 323,
In 46 N. W. 9 L. R. Lewis, Lewis v. Minn. 505, 559, court, recognizing 20 Am. Rep. St. that conceal- deception by parties respect ment to traits of one of character, temper, reputation, like, and the is not sufficient ground marriage, avoiding parties for a said: “The must take informing themselves, acquaintance burden of satis- factory inquiry, entering before into contract of the first importance society general.” to themselves and to
In Schaeffer, 160 App. 48, Schaeffer Div. 144 N. Y. S. yet said the court legal “we not at have arrived stage requires which annulment of because one party parties or both were untruthful each other in their protestations all-consuming mutual undying Mar love. riage yet depends status, family, on which the idea of a in turn has arisen the structure of on which civilization as we it.” know Divorce, Separation Marriage, and Domestic Schouler,
In 1 Ed.), p. it is said: “The (6th sec. Relations trifles, nor can to be disturbed for not marriage relаtion is im brought to bear machinery courts be cumbrous observed, no makes law, has been well it things. palpable may have it credulity, however blind of a relief provision *8 as party of one misrepresentations Fraudulent produced. been health, temperament, good and fortune, position, birth, social 131 emptor is the Caveat vitiate contract. therefore the cannot Love, indis- however necessary maxim the law. harsh hut of legal essential pensable sense, an is no means aesthetic scales weighed in the marriage; cannot be simply because it justice. So, within the too, peculiarly of such matters are all they themselves, put upon are knowledge parties of the and inquiry.” reasonable 304, Rep. 449, Long Long, 307,
In N. 24 the v. C. Am. quoted early approval Scroggins court from ease the of “ Scroggins, 14 N. C. is, Dev. as ‘There follows: general, persons marry rule agree no safe but this: That who * * they say, to take each other as are And we but cannot nothing dangerous could be more than allow those who have agreed to better, take each other in terms worse, to be for ” permitted say parties that one of the expected.’ is worse than recognize,
Courts must as Bard, that, did the Immortal “All lovers swear more performance they able, than are yet and ability reserve they perform; vowing never more than perfection ten, of discharging less than part the tenth of one.” During courtship of lovers both sexes apt are to set their best foot forward and display, resort to praise, push- self ing, puffery flattery and even all of which fall within category of “the privilege” showman’s rather than within the realm of actionable Simplex fraud. commendatio non nocet. Self praise is no recommendation. For that reason it is repre- no sentation nobody By trusts to it. it no one is deceived.
Error specified in the making of the trial court’s finding and conclusion to the effect “that all the allegations plaintiff’s complaint are true.”
In complaint her verified plaintiff swore: “That procured $5,500 defendant above referred to plaintiff $5,500 November, applied the month purchase dwelling placing house, dwelling the title said against his own name to exclusion wishes(Emphasis supplied.) complaint allegations are not true. On the quoted
132 undisputed contrary to the they
contrary false and are not advanced money was trial. The at the evidence submitted by de it used was dwelling house” nor purchase of “on the in own dwelling his “placing title of said fendant for in allegations were inserted wholly unfounded name.” Such it bringing purpose of complaint for the obvious plaintiff’s 86-103, in order R. M. section provisions within C. fаcts sufficient it to state challenge that fails to withstand the nothing plaintiff This can avail to constitute a cause of action. prove allegations and she her false she did and could not not 86-103, supra. under section for relief could not establish case That the defendant Harold evidence is: uncontroverted simple title to acquired had and that he owned the fee Baird property long he ever ac- real before became described April 10, 1946, he quainted plaintiff; at time on rating I. application preference and G. made written for a Baird; simple property was in loan the fee title to vested simple has and held that at all times since owned such fee he title; voluntarily made the advancement to him that his wife express his purpose enabling pay for the him to debt and purpose. that he used specific it for that Payment Debt. There is evidence prior Husband’s no money pay
to or at the time the was advanced to the hus debt, any promise, agreement band’s there was or understand ing repay any part sum promised that would or that he agreed any part convey or to title to of his to wife any imposed or that condition whatever was other than that money pay to was be used to the husband’s debt. deposited money The wife testified that she had after cheeking joint paid her husband account had after full, not until mortgage then and then did she want an debt “Q. But property. real She testified: interest in husband’s her Yes, A. mortgage house? you pay up on the urge him did pay spent my money I my name it but wanted after up.” it 105, 106, Eq. N. 134 J. Seigling, v. in Pieretti
As was said
133
(2d) 286,
34
287: “But her
desire
A.
used
by wife,
purpose.
appropriation
'An
her-
particular
for this
self,
separate property
the use and
of her hus-
benefit
agreement
band,
repay,
absence of an
circum-
inferred,
agreement
stances
which such
can be
will not
create the relation of
nor render the hus-
debtor and creditor
Black,
Eq.
band
N.
liable to account.’ Black v.
J.
215. And
Vigne Yigne,
no
N.
Eq. 274,
trust
the land results.
J.
R. 1947, C. M. secs. State ex rel. Board of Equalization Cole, (2d) v. 122 9, Mont. 195 Pac. 989; Pieretti Seigling, v. supra; In Harris’ 9 Estate, re Cal. 72 (2d) 649, (2d) 873; Pac. Lissner, In re of 27 App. (2d) 570, Estate Cal. (2d) 81 Pac. 448. spouse may
One gift not make property of to the other equitable thereafter continue to be the owner such of property. Bowman, 68, Lewis v. 113 Mont. 162; 121 Pac. (2d) v. Shaw, 593, Shaw 122 (2d) Mont. 208 Pac. 514.
In Montana may separate a wife transfer her property, real or personal, 1947, R. M. 36-111, may C. sec. and she make con- tracts, oral or written with the like effect as if single she were a 1947, woman. R. C. M. see. 36-130. right She has the give to away. her property may give She it her to husband or to person. other
“A right marriеd woman apply has a property, by her through her own hand husband, directly or payment to the of right his debts. Also money the wife has a contribute improvement to the the home of the husband and herself. gift Where there is a valid and completed wife to the husband, it is immaterial purposes for what the husband sub- sequently money uses or which subject was the gift. compelled The husband cannot be to return the property given or nor can the wife reclaim recover it.” 30 J., Wife, C. p. 707, Husband and 303, sec. notes 4-7. Also see S., 41 C. J. Wife, 156, Husband and page 636, sec. n. 6.
134 another is officiously a benefit confers person
“A who Restitu- Restatement of restitution therefor.” not entitled to p. 15. tion, 2, sec. of title that a transfer jurisdiction
It in this is the rule presumed to be spouse to the other property from one (2d) 132 Pac. 26, 34, Mont. Kranjcec Belinak, 114 v. gift, 159, Mont. Montana, 105 Bank 150; National Bingham v. Lewis, 109 315; v. A. R. Lewis 166, (2d) 90, 113 L. 72 Pac. Hum Bowman, supra; (2d) 211; v. 42, 49, Lewis Mont. 94 Pac. 756, 509, (2d) 499, Pac. Arnet, 99 Mont. bird v. gift, is a spouse one to thе other money made an advance of presumed and no relationship is contractual gratuity; no 69, Bast, 76, 68 Mont. obligation Bast v. arises therefrom. Shaw, supra. 345; Pac. v. Shaw may gift was a presumption While that the transaction evidence, such yet overcome by competent be rebutted clear, convincing prac must presumption the evidence be Bowman, Clary Flem doubt, supra; v. v. tically Lewis free from 252, 546, presumption is ing, 198 Pac. and such 60 Mont. merely by positive tes not a matter law overcome as contrary. McLaughlin timony to the interested witness 597; Corcoran, (2d) 69 Pac. Lewis v. 104 Mont. Bowman, supra. *11 purchase Boat Motor. As of the small
Purchase of motor, defendant Harold Baird fishing boat outboard testified:
“Well, suggested buying that boat and motor because I I told she wanted us to be ourselves. her that could borrow I anytime any why I that wanted to so didn’t see reason boat Well, buy buy a she insisted that we one so I we had boat. prices and wrote for some for some information looked around finally I this that good boats. found boat prices about the bought $113.00, C.O.D., then we this motor priced was $125.00. that came ‘‘ .bought upon request Q. and motor was Then that boat urgency? Yes, A. it was. “Q. A. against yonr judgment? And That’s that was better right.
“Q. joint paid And that boat and motor was for out of the cheeking A. account? Yes.” Ryberg Emma Baird testified: ‘‘Q. fishing trip furnished the ? A. did Who boat for this
so that we could in a be alone once while.
”Q. And motor A. Yes. too?
“Q. your buy So it was wish to the motor and the Yes, my boat? A. it was wish.” purchase
Purchase the Pontiac. Relative to the new Pontiac Emma Baird testified:
“Q. you purchase Now did want another automobile? Yes, A. my Chewy because he was so hard and had to drive around. relatives
n M [*] =X: # “Q. Now suggestion deposit at whose was the made at the Olney Pontiac? A. Both us.
“Q. $200.00 Where did that come from? A. Out checking account.”
It Money. Upon being was interrogated as to her Plaintiff’s expеnditures plaintiff testified that it money; was her that she could what do she wanted with it and that what she did it business. she,
On gave cross-examination following testimony: “Q. You don’t drink? A. No, I not, do and what I do my money my own "business.
[*] [*] # [*] “Q. you And you testified prudent and careful in money Yes, matters? A. I was.
“Q. you And your are careful with funds? A. Yes. ‘ ‘ Q. you Have had expenses during unusual the months of October and November? A. That has nothing to do with him.
”Q. you But expenses? did have unusual A. I wouldn’t say so, my money. it is *12 un- many have you didn’t
“Q. you to tell me Do want A. No. expenses? usual Mis- year cash at the 3rd of this
“Q. you Did on October I A. Yes and $125.00? in the amount Hotel checks soula North Dakota. my home in money back sent some ‘‘ my home. ? A. To Q. you it to Who did send # # # ^ =& $50.00 at the cheek for “Q. 10th cash a you October Did on A. I don’t recall. Hotel? Missoula at the Missoula Hotel “Q. cashing any you cheeks Do recall I I don’t recall when. A. did but at time? Sure in the amount of “Q. cashing two checks you recall Do Hotel? in the Missoula October the 10th of $25.00 each on No, A. I recall that. don’t I that? A. don’t
“Q. you say you didn’t do Would I think did. you
“Q. year, 11th did cash nine Now of this on October A. don’t. No I $100.00 check? $50.00 and one checks in the amount of “Q. you October 13th cash a check Did on A. I don’t Hotel? recall. at the Missoula $25.00 Missoula “Q. you 25th cash checks at the October did On checks, $25.00 one and one $50.00 check as follows: two Hotel making $140.00 worth $15.00, a total check in the amount of A. 25th? I can’t re- that were cashed October of checks I I think did. member and don’t money checks? “Q. you with the for these did do What A. I can’t remember. you Mis- year,
“Q. 27th of this did cash October On A. I don’t re- $100.00? amount of check in the soula Hotel a I did. member, I think don’t ‘‘ ? A. can’t remember. Q. you do with the What did year you a check at did cash 28th this “Q. On October *13 I can’t re- A. $40.00! Hotel in amount of the Missoula member. check
“Q. year you cash a 5th of did On November this amount say in the total Hotel, at Missoula or I checks should A. No. $400.00? “Q. you year cash cheek On November 10th of this did A. No. $100.00? Hotel in amount Missoula ‘‘Q. year you On 16th of this did cash check November $100.00? A. I at the Missoula Hotel in can’t the amount of remember.
“Q. On year you November 15th of this did cash a check at the $100.00? Missoula Hotel the amount of A. No. ‘‘Q. year, you On November 18th of this did cash two checks at the Missoula Hotel in $100.00? the amount of A. I can’t remember.
“Q. You can’t remember? A. might That have been some money I that sent to friend mine back home. “Q. you Did cash checks on the Bismarck bank? A. Yes. “ Q. you So then cashing were these cheeks at the Bismarck or at the Missoula Hotel to you take to Bismarck ? A. Yes.
“Q. you Did on November cash checks in the total amount $140.00? A. I can’t remember. “Q. you Do remember back in the cross-examination that you you played testified that the slot machines? A. I don’t play remember that but I do them some.
“Q. you Have been playing the slot machines during the month of October and November? A. Some.
‘1Q. you And you want the court to believe that would cash your checks here in Missoula and then send money back to my Yes, money North A. Dakota? it was and I could do what I wanted with it.
“Q. say you played You slot machines? Some, A. yes.
“ Q. machines you playing these Is it true have been not I good deal? A. some. said “ you put the Q. have fact, As a matter it not true IA. machines? greater $1,800.00 the slot share of that into myself.” played that I owe that them but think some brought with her from money The and bonds which right property. She had the North Dakota For what and dispose property pleased. of this as she disposed How spent her business. she whom fights she exer of her bonds was likewise her business. These per other funds, cised credits and to the fullest extent. voluntarily delivered and transferred sonal which she intent *14 but with donative to her husband without consideration 1947, 67-1706, essential gifts, R. C. M. sec. the constituted delivеry, accompanying donative the elements whereof are: the 43 O’Neil, Mont. acceptance by donee. O’Neil v. intent and the 1912C, giver 889, 117 Cas. 268. The has 505, 511, Pac. Ann. corresponding right the has the legal to make and donee the accept gift. Upon acceptance gift his legal right the 1947, M. the so transferred. R. C. acquires the donee gift the passes giver 67-1201. the section Title to executed What thereafter the donee. the donee does such executed gift “A than a view of death gift, his business. other gift is ” 1947, M. giver. R. C. section 67-1708. revoked the cannot be giver may subsequently gain the disfavor of the Nor should he giver may he liable as the debtor of nor be held the the donee J., Wife, to her. 30 C. to account Husband be held liable S., Wife, 156; 41 p. C. J. Husband sec. Black sec. 215; Seigling, supra. Eq. 30 N. J. Pieretti v. Black, reaction, big, sometimes a some- arrives a “After later, one; it and must be little, but comes sooner times they desire the rest of their lives parties if by both tided over reaction, Kipling. Here the little current.” go —a anniversary wedding first days before one, eleven arrived husband, home,— voluntarily her quit when the wife —left for him took the first train North and then for fraud sued marriage had endured until where remained Dakota cruelty grounded for divorce year sue so that she could year before period one “existing persisted M. by R. C. provided as the action” commencement of anniversary first day On after section 21-106. the fourth day, and that Missoula returned to wedding, alleging 17805 for divorce September 26, 1948, No. filed suit cruelty. extreme separate
This divorce suit is and distinct from suit in equity pleadings sep- No. 17785 for fraud. The and issues are Orderly procedure requires arate and distinct. the two kept separate throughout. suits be However, and distinct district court heard equity the evidence in both the suit No. 17785 аnd the divorce suit No. 17805 at same hearing, resulting jumbling in a of the evidence and issues. Of such so- called saving” practice “time we approve. do not The result has been confusion. We only are here concerned with the suit in equity No. wherein appeal was taken. We have jurisdiction no of the divorce action No. 17805 wherein there appeal. was no Neither pleadings nor decree, if was entered in the suit, divorce are before us. True bill exceptions purports herein to set forth the evidence submitted in both in equity the suit No. 17785 and the divorce action No. 17805. This is because impossible it is to unscramble the evi- dence introduced at the trial. Thus have the waters become muddied, issues and evidence confused and much —the unneces- *15 sary expense, labor and inconvenience occasioned.
In the instant suit in equity No. 17785, plaintiff complains prior wedding their her suitor “fraudulently repre- sentend to her that he was honest, аn honorable man.” This is not fraud. It is life. ordinary every Common day life. proof gives
“The first a man of his interest in a woman is by talking to her about own sweet self. 'If the woman listens yawning, begins without he her. If like she flatters the ani- vanity, adoring Kipling. mal’s he ends her.” plaintiff prays to the relief for which plaintiff To entitle of action required a ease plead prove to both was. is reversed Accordingly able fraud. She did the decree neither. directions to the cause remanded to the district court judgment prejudice. dismissing enter the action with FREEBOURN, concur. MR. JUSTICES BOTTOMLY dissenting. MR. JUSTICE ANGSTMAN: plaintiff At about the that this action commenced time were tried likewise filed action for divorce. Both actions together. actions. There The court in both found appeal granting plaintiff divorce. has been no from the decree complaint in the We do not have before us this action the allegations divorсe action. We not advised as to what are complaint Presumably upon cruelty. of that were. it was based “Q. Baird, you alleged Mrs. have Plaintiff testified: Now cruelty by your complaint, certain acts of the defendant something alleged you tell the those acts of would court Well, cruelty? A. struck me times. he three “Q. you approximate Do recall times that 'he struck you? A. In June of his we were out some relatives and something about and hit got mad me.
“Q. any doing there that? A. I Was reason for don’t know me. why he hit
“Q. you remember date A. I Do of that? don’t know June, exactly it was but sometime 1949.
“Q. you? had no He reason to strike A. No.
“Q. you you? Will how he Right describe struck A. my mouth.
“Q. A. Yes. With his fists? right in A. Yes.
“Q. you the mouth with his fists? He hit you you times that he struck “Q. there other Were A. Yes. can remember? 1949. August, A. In
“Q. When was that? surrounding that time circumstances “Q. What were the car, got driving in and he together, A. We were August? hit me. something again about mad
141 say A. I couldn’t “Q. Ms fists? did he use At time he hit me. just for he hit me did sure how but Well, hit you A. me “Q. say sure? he Why can’t Ms hand. “ you with Q. he hit You don’t remember whether not up? his fist A. No don’t. doubled cruelty
“Q. acts of you Now will tell court other by Well, just A. me a maid and the defendant? he used as never as a wife.
“Q. you Yes, married? A. From time that were first always get my money. and he wanted to “Q. Anything get money you? right. A. That’s “Q. money matters, what he Now about these was cruel to you money? kept about A. He talking sure and then he getting to me about a divorce.”
Hence quoted the authorities majority cited and from in the opinion dealing question annulling on ground of fraud inapplicable are here. The fraud here alleged ground is relied not as of divorce but as a reason why plaintiff property should have her restored her. Like- may wise fraud be considered to show cruel and inhuman treat- ment. Longtin Longtin, v. 22 Sup., 827, N. (2d) Y. S. strongly case so relied on in majority opinion, so holds. “Equity good require conscience thаt the shall husband profit by wrong not his own in forcrng his him, wife to divorce that restitution shall be made to her of the which she ** * brought him policy be, is, the law should justice give to do and to injured to the merely wife not what necessity, justice, but what demands.” 17 Am. Jur., Divorce & Separation, 599, p. sec. 469. general S., Divorce,
To the same effect 27 J. is C. sec. page way saying is 1132. This but another that the husband reap Williams, “should not where did not sow.” Faris v. 293, 294, (2d) 154 16 and that he Fla. So. should profit not recognized by “It wrong. his own that when a wife labor industry she advances or when husband and 142 a forfeiture permit not business, law will bim a
used 86, Fla. Masilotti, Masilotti husband.” thereof to the (2d) 135. *17 So. and considerations, other has, equitable
“If fsom the wife such as than property in husband’s interests her additional the to as, came if her as a her status attach to wife— by in real him invested husband, has been and hands of the earnings savings or if her title, or which he holds the estate to the acquiring in aided him possession and gone into have dissolving mar the may properly, when real estate —the court title with the shall be vested relation, that the wife riage decree belonging to real estate estate or some other in fee to such real adjust fair husband, equitable an and in order to effect the parties.” Champion v. rights the property ment of the 815, 816. Myers, 207 Ill. 69 N. E. made simply recognition of the statement principle is
This dissenting opinion in his in Detert by Mr. Justice Adair Chief (2d) 215, 229, 142 and as to Detert, 115 Mont. Pac. v. agree. He all members of the court would which doubtless “Marriage something more than a mere ‘share there said: is arrangement wealth’ and the relation should not be con- the fraudulently acquire as a license to loot the estate or the sidered property spouse.” either equity, multiplicity actions,
A avoid a to will re court of property originally turn wife in the divorce action which to the by belonged acquired taking her but which the husband to ad marriage vantage gain possession. relation of the its Mer to Mergenthaler, App. (2d) 525, 69 160 genthaler (2d) v. Cal. Pac. 37; 110 W. Va. 157 E. 121; Smith, S. Faris v. Wil Smith v. Myers, Champion supra. v. liams, supra; opinion Shaw, v. court’s Shaw But in view of this Emery Emery, 122 Mont. (2d) 514; 593, 208 Pac. Mont. cases, plaintiff kindred based her (2d) 251, 201, 200 Pac. ground fraud upon the property of her right restitution to by upon her defendant. practiced allegations finding the think justified Judge was Comer decree which complaint entering and in to be true plaintiff simply pay he The did. decree directs defendant 60 days from $8,050 holding within which is as trustee judgment held defendant will date liquidate trust. be sold under order of court to charges complaint, concerned, so far as this action is falsely inducing marry fraud him defendant fraudulently representing to her that he was honest man and that he loved her and to make a home for her wanted happy, life; plaintiff normal lead married believed these rеpresentations to true and would not have consented be marriage they had she known not true. The com- plaint alleges that defendant fact dishonest dishonor- able ; that he did not love her and did not happy, want to lead a her; normal married life and not did want to make a home for all he money; through- wanted out which year, lasted about a *18 defendant has constantly ways schemed and connived procure and means to plaintiff’s money, and procure $5,500 that he did in fact in cash and the $2,550, proceeds sum of the of certain bonds held in joint plaintiff the names of defendant, and but which was plaintiff’s property; by that reason of the false and fraudulent representations plaintiff prevailed was support to defend- ant from marriage day the time of the until or about the 2nd 1949; of September prior that marriage plaintiff awas $34,000 and widow the owner of property; worth of de- that during marriage fendant has earning been and is capable earning per month; $5,500 $250 that above mentioned by applied purchase was defendant on price dwelling- of a placed only, house and the title was in his own against name plaintiff; proceeds the wishes of that from the bonds purchased above mentioned defendant a Pontiac automobile and against plaintiff; took in his own name the title wishes representations and fraudulent it not the false permitted plaintiff she would not have made to defendant money; that she has demanded that defendant have access to obtained money thus which he to her the return him purchased her to all the transfer title to her, but from fraudulently falsely obtained thus refused to do. this he has that defendant except general denial
The answer is in effect a per earning $250 earning cаpable and is has been admits he month. is insufficient majority opinion the evidence
The holds that that there court, particularly findings warrant the part fraud on sufficient evidence to show is not merely courtship a followed defendant; most shows that at it some during plaintiff which made an unsuccessful gifts defendant. met at briefly these: Plaintiff and defendant are facts a train morning plaintiff when boarded
about four o’clock one Bismarck, Washington, North Dakota. Yakima, en route to already train, returning Defendant on the to Missoula They up together had and struck a conversation. Seattle. coffee plaintiff Bismarck, Dakota, North At that time resided at Missoula, They corresponded by defendant in Montana. letter telephone, engaged, September later became and on marriage, engage- intermarried. but after Prior to ment, opened joint cheсking in account the bank placed Missoula and it her own funds. It is conceded that marriage plaintiff $5,500 paid joint cheeking after the from the discharge mortgage account to on defendant’s home. She also placed government joint bonds their names. These were first kept joint safety deposit box, plain- but defendant without knowledge tiff’s moved them to a box of his own. It is conceded $2,550 buy automobile, furnished with which to *19 denied that advancements were boat and a motor. She these gifts it to defendant. She said that was the to be intended placed be in her name' understanding home should that the automobile should be and that the along that of defendant with the automobile was that when The record shows in her name. would so that title first made out papers purchased, the plain- defendant, -without But plaintiff. name of stand the that so changed papers consent, thе had knowledge tiff’s When stands. it now that is how name and in his own title stood real being on name not about her complained plaintiff way to be her, you “If want said to property, defendant place This took get a divorce.” me, you might as well with dry ink was before the shortly marriage and after the immediately after Plaintiff testified mortgage satisfaction. her and though he loved marriage ceased to act as defendant wife. a maid and not as a that he treated her as findings to sustain the think there is sufficient evidence may proved fact be judge. Fraud like other trial says, as If, defend- circumstantial evidence. as admitted, fifty-fifty proposition marriage ant was to be a both, name of the defendant and the to stand marriage. He understanding shortly breached that after the marriage love, shortly affec- likewise denied to her after the good dealings professed tion аnd faith which he before the marriage strength parted and on which she with her money. is, course, It difficult ascertain the state of exact mind of defendant at the time assumed the confidential rela- tionship involved status. His of mind can state only subsequent be revealed supports actions. The record obligations conclusion that he did not fulfill which he providing had living assumed of a home and a normal life plaintiff as her husband. proven by cannot
“Fraud often be direct evidence. Fraud upon straight conceals itself. It does not move the surface in ways. may difficulty goes in devious We know lines. It goeth.’ it It ‘loves darkness ‘whence it cometh and whither rarely are It light, because its deeds evil.’ rather than likely going. are more it in its We lay hand we can our it we know that has destination, before to discover it at its it, the so discover When we sinuous course. upon its started goes its trail baсk over investigation judicial light search follows As the woodsman end. beginning lightens it from *20 146 displaced twig or game by slight indications, as a broken circum
pebble, may apparent by innumerable so become fraud in ‘con stances, their mass individually trivial, perhaps, but ’ of holy weight The isolated strong proofs firmation of writ. as may shadow of light ‘as as the tending items to show fraud be drift, snow,’ makes drifting drifting the but the snow time history avalanche, may hang the glacier. over the the Fraud atmosphere upon the of the acts of man the leaden-hued like Usher, ‘faintly pestilent, atmosphere of an house discernible but ” affinity which has no with the air of Heaven.’ Merchants’. Bank Greenhood, 395, 429, 250, 259, Nat. 16 41 Pac. v. Mont. 851. gift
The rule that: “If at the is time of the transfer or of spouse other, way by by gift post- to one nuptial settlement, contemplate the former does not keeping the marriage vows and the intention to violate them is subsequently carried out, weight authority supports proposition that this conduct constitutes such a fraud spouse innocent inception ground of the transaction will as be avoid- ing p. it.” 29 A. R., 210, L. note. principles
The
relied
applied
here were
in Meldrum v.
Meldrum,
478,
15
24
1083,
Colo.
Pac.
11
65;
L. R. A.
Johnson
v. Johnson, 122
117,
Wash.
210
382;
Pac.
Munroe,
Munroe v.
20
26
579,
Or.
838;
Pac.
and Murdock Murdock,
v.
49 Cal.
App. 775,
The holds that under the evidence and the presumption law there is a by advancements made gifts. defendant were Bingham Montana, In Bank National 159, 105 Mont. (2d) 90, my 72 L. R. dissenting Pac. 113 A. opinion, pointed by authority weight out advances made presumed gifts. court, to her husband are not wife This be however, gift adopted presumption the view that the of a has presumptiоn a rebuttable one there obtains. At most is majority But the overturning presumption. here evidence as may overcome not be presumption opinion holds witness. interested testimony by the a matter lawof (2d) 590, 69 Pac. Corcoran, Mont. McLaughlin v. case of on. is relied is not disputable presumption “A said: the'court There testimony con- to the law, positive overcome, as a matter of *21 witness, in such circumstances trary by an interested. ’’ by judge. court or question to be decided of fact is tendered gift material, then we question gift no is Here if the judge against gift implied finding by trial have an theory by finding supported ample is evidence. regard gifts,
But if
result is the same
we
the advances as
they
gifts,
be,
—the
if such
on the
were intended to be made
promises
basis of defendant’s
lead a normal
life and
wedded
prepare
plaintiff.
home
The failure to do so would con-
upon
stitutе a
rights
plaintiff. Compare
fraud
Huffine
v.
Lincoln,
585,
Mont.
If gifts, they the advancements were ever intended as supposition made on the that defendant was and would con- tinue husband, to be her trusted scheming adversary and not a divesting bent on her of her compelling and then to obtain a divorce. plaintiff,
It is conceded that as marriage, a result of the $8,000 short more than gained and defendant has that much by having paid his debt $5,500 the sum of having automobile, new boat and motor, costing $2,550. another To permit defendant to retain these amounts under the circum- shown stances here works a plaintiff, fraud and the triál right holding.' court was so think judgment should be affirmed. dissenting.
MR. METCALF: JUSTICE never intended the Baird Mrs. is evidence There convinced gift. This evidence be a husband to advanced to presumption the facts. The the trier who was judge, trial judg- gift spouse other rebutted. of a one ment should be affirmed.
Rehearing June 1951. denied Respondent. SORENSON, JACOBSON, al., Appellants, et No. 9029. Submitted March 1951. 1951. Decided June (2d) 232 Pac. 332.