128 P. 805 | Ariz. | 1912
The court sustained) objections to questions asked by plaintiff of defendant Joe Kline, plaintiff Wm. Kline, and witness William Rawlins, when testifying as witnesses and assigns error thereon. These questions sought to prove statements made in the presence or hearing of Joe Kline, which, on account of his silence, would estop him from asserting title to the property, and tending to prove that the plaintiff conducted the guardianship matters under duress and undue influence exerted over him and continued until the commencement of this action. From the view we have taken of the case, both contentions become immaterial, and these assignments need not be further discussed. Leon v. Citizens’ B. & L. Assn., ante, p. 294, 127 Pac. 721.
The probate court proceedings were competent evidence bearing upon a ratification and confirmation of the deed and bearing upon the construction placed upon the transaction by the appellant, and as admissions made against interest.
The ruling of the court permitting the wife of appellant to testify against him without his consent is made a ground of complaint. Whether in this case the wife as a witness falls within any exceptions preserved by the statute we deem it unimportant to decide. If we concede that technical error was committed in permitting the wife to testify, we fail to discover wherein any injury resulted to the appellant therefrom. Her testimony was at most corroborative. The same result must have been necessarily reached if her testimony
The appellant in his complaint alleges duress and undue influence in the execution of the deed, and an inadequate consideration therefor. These claims are amply sufficient when established by clear and convincing proof, to justify a cancellation, of a deed so executed. The appellant as such plaintiff is not satisfied to rest his right to relief upon these grounds alone, and as an additional cause for relief alleges: “That said deed was, however, made and delivered with the express understanding and agreement of plaintiff with the defendants at the time of such execution that the same should not actually and in fact convey the title to said minors. ...” Thus on the face of the complaint, necessarily admitting the free act and deed of appellant in' making the deed, thereby neutralizing all allegations previously made in the same paragraph of the complaint, that the deed was made under duress and undue influence, and showing a condition of facts that at most could make the minor defendants the holders of the legal title, but such holders, as trustees for the plaintiff. The evidence fails to support such claim of the appellant. The cause was tried upon the questions arising upon the allegations of duress, undue influence, and inadequate consideration, which questions we will consider at some length.
Duress, to be available as a ground for setting aside a conveyance, must be of such a nature as to excite an apprehension or fear of great bodily harm or illegal punishment, and the violence or threats should be of such a degree as to cause a person of ordinary firmness and courage to yield. 1 Pomeroy’s Equity Jurisprudence, 3d ed., sec. 71, p. 129. But, in order to avoid a deed on the grounds of duress per minas the threat should be such as to strike with fear a person of common firmness and constancy of mind. Barrett v. French 1 Conn. 354, 6 Am. Dec. 241.
The testimony of the appellant touching the threats that served to overpower his mind and strike with fear in brief are as follows: On the night before the deed was made, during one of the many family quarrels waged on appellant by the wife and children because he refused to make the conveyance
Mr. Ellis testifies that appellant gave full instructions for drawing the deed, and appellant with his wife, Ida Kline, came to witness’ office together and signed the deed. At the time the deed was signed, witness observed nothing unusual about the appellant. We see no elements of duress here present.
Free agency must be destroyed in order to set the deed aside for undue influence. 1 Devlin on Deeds, 3d ed., 133, 134, and cited cases in note 3. Mere improper influences will not be sufficient where they do not amount to fraud. Corbitt v. Smith, 7 Iowa, 60, 71 Am. Dec. 431. And it must appear that the influence was exercised at the time the act was done. 13 Cyc. 586; Mallow v. Walker, 115 Iowa, 238, 91 Am. St. Rep. 158, 88 N. W. 452; Curtis v. Kirkpatrick, 9 Idaho, 629, 75 Pac. 760; Riordan v. Murray, 249 Ill. 517, 94 N. E. 947.
The evidence is sharply conflicting upon every fact asserted by the appellant leading up to the execution and delivery of the deed. The trial court had the witnesses before it, and could observe their demeanor on the stand while testifying, and could the better judge of the truth of their testimony and the weight to be given the same, than this court is able. The trial court having found that the deed is a valid deed, we would not substitute our judgment under such a state of circumstances for the judgment of the trial court, if we could not fully agree with the result reached by that court, had we occupied the same relation to the cause. However, we fail to discover in the evidence a situation that would justify a holding that the deed was made under duress or under undue influence.
Want or inadequacy of consideration by itself is no ground for setting aside a deed. 13 Cyc. 593, and note 64. If the deed is a voluntary one without consideration, it can only be avoided by someone having equities against it. Ryan v. Brown, 18 Mich. 196, 100 Am. Dec. 154. And the appellant has not placed himself in the class of persons having equities against the deed.
A deed executed under duress is voidable merely, and not void. 1 Devlin on Deeds, 129, sec. 81, and note 8.
So, also, is a voluntary deed made without consideration, or for an inadequate consideration voidable, and not void.
“ . . . Contracts which are merely voidable because contrary to good conscience or equity may be ratified, and thus established. If the party originally possessing the remedial right has obtained full knowledge of all the material facts involved in the transaction, has become fully aware of its imperfection and of his own rights to impeach it, or ought, and might, with reasonable diligence, have become so aware, and all undue influence is wholly removed so that he can give a perfectly free consent, and he acts deliberately, and with the intention of ratifying the voidable transaction, then his confirmation is binding, and his remedial right, defensive or affirmative, is destroyed.” 2 Pomeroy’s Equity Jurisprudence, 3d ed., p. 1783, sec. 964, and notes 2 and 3 cases. See Crooks v. Nippolt, 44 Minn. 239, 46 N. W. 394; Kerby v. Kerby, 57 Md. 345.
Bearing upon the questions of ratification, we find in the record that on June 16, 1903, appellant was appointed guardian of the persons and estate of Joe and Annie Kline, minors. During August of the same year, he, as guardián, made application to the probate court under oath for an order to mortgage this very property, alleging that the entire estate of said minors consisted of such property—the exact property, described in the deed attacked. The application was granted on September 15, 1903, and on December 1, 1905, “by virtue of the authority granted him by an order of the probate court dated September 15, 1903,” in consideration of $5,000, he mortgaged the property to the Bank of Douglas. The attestation clause and signature are as follows: “In witness whereof, the said William Kline has executed these presents as guardian of the estate of Joe Kline and Annie Kline, minors, this first day of December, A. D. 1905.. W. Kline [Seal.], Guardian of the Estate of Joe and Annie Kline, Minors.” On the same date he acknowledged the mortgage in the same representative capacity. The note which is secured by the mortgage is signed in the same capacity.
Appellant made his annual account and report of his administration of the estate, describing the property involved,
The question of a guardianship accounting for the receipts from the property and the outlays and expenditures of the
The judgment is affirmed.
FRANKLIN, C. J., and ROSS, J., concur.
NOTE.—As to when a deed is void for fraud, see note in 93 Am. Dec. 596.
As to what is duress, see note in 26 Am. Dec. 583.
As to what are voluntary deeds, and the effect of them, see note in 14 Am. St. Rep. 739.
As to presumption of undue influence, see note in 21 Am. St. Rep. 94.
As to same in connection with deeds, see note in 1 Am. St. Rep. 88.