121 N.W. 75 | N.D. | 1909
This is an action to set aside a deed to a part of lot 1, block 12, of Keeney & Devitt’s addition to the city of Fargo. The complaint states as the basis on which such relief is asked the following facts: That defendant had been acting as the plaintiff’s agent in attending to the removal through legal proceedings of a tenant of the plaintiff from a building situated on a lot adjoining the plaintiff’s residence. That the defendant had as such agent served or caused to be served upon such tenant a notice to quit some.time previous to May 14, 1906, and that it was necessary to serve another notice, and that defendant did on May 14, 1906, fraudulently procure the plaintiff to sign a deed of the said property and deliver
We will not review the evidence at any great length, but will state enough thereof to indicate the basis of our conclusion that a new trial must be had.' In the first place, the evidence of the plaintiff shows to our satisfaction that the defendant paid no consideration for the deed, nor did the plaintiff receive any therefor. The
So far as the fraudulent representations alleged in the complaint as a basis for setting aside the deed are concerned, it is conceded that no such representations are expressly shown by the evidence. On the trial the plaintiff asked leave fb amend the complaint by striking out all allegations therein as to .fraudulent representations, and inserting in lieu thereof allegations to the effect that the deed was signed through mistake caused by sickness, and through what had theretofore transpired as to giving notice to quit to her tenant, and that, on account of such facts, she believed she was signing a notice to quit. The motion to amend the complaint was objected to by the defendant on the ground that the issues would be thereby entirely changed. The court refused to allow the amendment, and granted the motion to dismiss the action which had been theretofore made. In view of this record, it is apparent that the question of actual fraudulent representations inducing the execution of the deed must be eliminated in considering the evidence. The deed was signed in the presence of three persons besides the defendant. The plaintiff makes no attempt to show any actual fraudulent representations, bqt relies upon a claim of mistake as to what she thought she was signing, which was, as she alleges, brought about by what had transpired
Defendant also attempts to sustain the deed on the ground that the plaintiff told the notary that it was all right, and that she was satisfied, about two weeks after the signing and delivery of the deed. From the notary’s evidence, however, it is clear that he himself does not know whether she meant to express satisfaction with the notary’s services in looking up the records to ascertain what property she had conveyed, or whether she meant to say that she was satisfied with having given the 'deed to the defendant. It is a significant fact in this case as tending to show that the plaintiff did not know what she was signing that immediately upon ascertaining that the deed conveyed, not all her property, but only a part of the lot on which she resided, she continued to demand that he reconvey to her, and she has ever since insisted upon a reconveyance to her. She ascertained what the deed conveyed in about a week after the conveyance, and from that time until the present time has sought to compel him to re-convey to her. If she knew that she was signing a deed on the 15th of May, and signed it voluntarily in a legal sense, why did she change her mind and demand a reconveyance immediately on being informed -that she had given a deed. The only person who can explain this fact, if any one can, is the defendant.
The complaint does not allege that these parties are husband and wife. The answer alleges this as a fact, and the record shows the fact by evidence unobjected to. It is strenuously urged by the defendant’s counsel that the confidential relations usually existing between husband and wife did not exist as a matter of fact in this case, and, as a basis for this contention, it is urged that she endeavored to get rid of him. The fact remains, however, that the record shows that they were husband and wife, and lived together in the same house as such. We do not think that there is anything in this record that warrants us in considering the evidence, except according to the general rules applicable to transactions between husband and wife, or other parties between whom exist confidential relations. The fact that married women may convey their separate property without consent from their husbands in this state under section 4079, Rev. Codes 1905, does not abrogate the rule that deeds from wife to husband will be cautiously scrutinized, and, when circumstances
The judgment is therefore reversed, a new trial granted, and the case remanded for further proceeding, according to law.