2 Wash. 616 | Wash. | 1891
Lead Opinion
The opinion of the court was delivered by
— The parties to this action were father and daughter. The appellant, Muzzy, about 1880, settled himself and family on government land on the opposite side of Spokane river from the then village of Spokane Falls. His family consisted of himself, his invalid wife, and five children, all of whom were of mature years. His other children had from time to time either married or left home for the purpose of maintaining themselves. The respondent was then about twenty-five years of age, and a single woman. In intelligence she was rather below the average, and had had slight advantages of education, and little or no business experience. It was contended in her behalf at the trial of the cause that she was mentally incompetent, but we think, upon the whole, that it fairly appears from the record that there was no unusual weakness of intellect, but that lack of education was about all
The appellant, soon after arriving in Washington, conceived great confidence in the future of Spokane Falls, and proceeded to acquire a body of land in that neighborhood, by exercising his homestead rights. He also caused the respondent to locate herself as a homesteader upon the land in question, in the fall of 1882. Her sister also located upon an adjoining quarter section. It is agreed by all parties that the lands entered upon consisted of a gravelly plain that was of practically little or no value for any purpose excepting as it might depend upon the future development of the village near the falls. The nature of the soil rendered it totally unfit for cultivation. The appellant chose to acquire his own tract by residence thereon during the full term of five years j but in the spring of 1883, after having built for his daughter a fence around her tract, and a small house in which she kept up the necessary residence for about six months, he advised her to commute her homestead to a cash entry, and by so doing avoid the further necessity of living on the land. She had no means whatever with which to pay either the office fees, the cost of the improvements made upon her tract, or the sum of $400, which was the government price for the land. She stated, without contradiction, that in consideration of the improvements her father was to have the “ back forty,”
The complaint set forth that up to the 15th day of June, 1886, since her patent, respondent was the owner of the tract. She alleged the relationship between herself and her father; that she was at all times since 1882 ignorant and wholly inexperienced in all matters of a business nature, and was accustomed to rely upon her father therein, and that he knew that she was deficient in mental capacity and understanding, and wholly incompetent to transact anything of a business character requiring thought and consideration ; that she was induced to settle upon and commute her tract by her father; that at her father’s instance she had assisted him in borrowing the sums of money before mentioned, and that he had stated to her that to secure her for the repayment of the sums borrowed for his benefit, he would give her a certain timber culture claim that he then held; and then followed this form of allegation: “4. That on the 15th day of June, 1886, defendant, fraudulently taking advantage of plaintiff’s said incapacity, of which defendant well knew, and of her implicit confidence and reliance in him on account of the close relation existing between them, procured her to sign a certain writing,
“7. That said defendant, her father, taking advantage*622 of the confidence reposed in him by her, and of her total incapacity to transact business, and by fraud and misrepresentations, induced her to sign the papers and deeds as aforesaid, and received the considerations arising therefrom, and that she would not have signed and executed the same had she known their true meaning and effect, but that she did not know of the fraud that had been practiced upon her until about ten days ago, and when she was advised by her counsel in regard thereto.”
There are also proper allegations as to the conveyance of the tract to the Spokane College. The answer contained a denial of those parts of the complaint which alleged plaintiff to be deficient in mental capacity, and her reliance upon her father, and the charges of misrepresentation and deceit, and set forth that the actual exchange made between the parties was on the 17th day of March, 1884, in this language:
“2. Defendant further alleges that on the 17th day of March, 1884, he purchased said real estate of plaintiff, and in payment therefor assumed the whole of said Ollis mortgage, and conveyed to her a one hundred and sixty acre timber culture claim in Lincoln county, in said state, of the value of about one thousand dollars.
“ 3. That said property at that time was of the value of not to exceed fifteen hundred dollars, and the consideration thus paid plaintiff by defendant for said real estate was full, fair and ample.
“4. At the time of making said trade plaintiff consulted with her brothers and sisters and other of her friends fully concerning the same, and she knew exactly what she was doing, was as competent as any one to do such business, and was not in any way imposed upon or overreached.
“ 5. That for convenience the title to said property was left at the time in plaintiff, and remained in her until she conveyed the same as hereinafter alleged.
a 6. That thereafter she conveyed portions of said land, as alleged in said complaint, to Turner and Abernethy and to defendant by good and sufficient deeds, and with full and entire knowledge of what she was doing. Such con*623 veyances were made by her under the provisions of her sale to defendant, as aforesaid, and in furtherance thereof, and not otherwise.”
In the trial of the cause the plaintiff introduced witnesses who testified as to her want of capacity to transact business, and as to the relations of trust and confidence which existed between her and her father. Certain of this testimony went so far as to make her appear to be even weak-minded or childish. Other witnesses testified that in 1884, at the time when the defendant claimed the transaction between himself and his daughter to have taken place, the land conveyed to him was worth from $40 to $50 an acre. The plaintiff herself then became a witness, and proceeded to make a very poor narration of the transactions of which she complains, in the progress of which it appeared, however, that each step taken by her was under the advice and substantially at the dictation of her father. In almost any other cause she would have been an exceptionally bad witness because of the few particulars she was able to give of the transactions in issue. But she maintained without any subsequent contradiction that she had never received any money from her father as the proceeds of any sale of her lands; and while she did not narrate clearly the circumstances attending the execution of any one of the instruments actually executed by her, she maintained stoutly that each time she was assured by her father that what she was about to do was merely in the way of assisting him, and taking care of the mortgage obligation which she had originally incurred as it was continued from time to time by her subsequent obligations. But although she would ordinarily have been a bad witness, as has been said, perhaps in this kind of a case she may be accorded justly the praise of having been an exceptionally good witness. She betrayed no intention either to obscure or pervert any of the facts about which she was inquired of, but seemed to
Concerning the transaction with the timber culture claim, the facts appeared to be these: That appellant had taken up 160 acres in Lincoln county, some distance from Spokane, as a timber culture claim under the United States land laws; that he had plowed ten acres and put a wire fence around it; that at the time of his alleged transfer of it to his daughter he had made no other improvements upon it, and had planted no trees; that it was fairly good land, which, when title had been obtained to it, would have been worth from $4 to $6 per acre; that his daughter had never seen it; and that at the time of his alleged transfer to-her, in 1884, the time allowed him by law to hold the claim was then about twenty days from expiration, unless he should before that time further improve it in compliance with the law. It seems, however, that he had actually not complied with the law, in that he had not cultivated or cropped; any portion of the land as required by the statute, although he had plowed five acres in each of the two preceding years, and had, therefore, a very doubtful right to further hold the land at all. He claimed this right to be worth $1,000, and insisted that because of his relinquishment of it to his daughter, and the assumption of the $1,500 mortgage to QUis, he had actually given her the value of $1,900 for her land, the items being: For the timber culture, $1,000; for the improvements put upon her land by him, $500; and $400 loaned her for the purchase of her land. At any rate, he
“ Tompkinson and his wife asked me frequently to sell it. Mr. Tompkinson was at my house several times last year, and requested me, and his wife requested me, to sell it and get the money out of it. I had an offer of seven hundred dollars in cash for the claim, but I would not take that. He said he wanted the money out of it.”
Certainly nothing more conclusive could appear out of the mouth of witnesses than that, whatever may have been the other facts in connection with this case, appellant had never released or intended to release his practical hold upon that timber culture claim, and was simply using his chil
We shall go no further in stating the testimony in this case, excepting to remark that from the whole case it appears with a great degree of probability that the appellant, who had conceived a very strong confidence in the future of Spokane, and was eagerly acquiring title to all the land he could get in that vicinity, and who at all times, when remonstrated with by the members of bis family for tbe manner in which he was treating his daughter, answered
We return now to the pleadings and the findings of the court below. It was contended by the appellant, with a great deal of force and earnestness, that the complaint, stripped of all verbiage, based tbe plaintiff’s right of action upon actual fraud,' accomplished by the false representations made to her, that the instrument which she signed, and which conveyed her property to appellant, was a mortgage, and not a deed; and that, inasmuch as the court below found that allegation to be not sustained, its judgment should have been for appellant instead of respondent. It was not contended that this court is bound in any manner by the findings of a superior court, or that this is a case merely for affirmance or reversal, but it was urged that in the interest of good pleading this court should find the fact to be as found by the court below, that the misrepresentations did not exist, and that we ought thereupon to dismiss the cause, regardless of any other equity shown by the evidence. The respondent concedes the failure to prove the misrepresentation, and lays aside that allegation.
This leaves the case to be decided upon whatever' else there is in it of proof responsive to the allegations of the complaint j and we think we are justified in saying that a critical examination of the fourth paragraph of the complaint makes the gravamen of the action to depend as much upon the allegation of want of consideration as that of fraudulent representation. Preceding portions of the com
<cThe defendants in this case were clothed with no special function, no trust which they were bound to guard or to fulfill for the benefit of the complainant. They were not even the depositaries of any peculiar facts or information as to the subject-matter of their transactions, or which were not accessible to all the world, and by an omission or failure in the disclosure of which they could be regarded as perpetrating a fraud.”
The bill alleged a combination between the defendants to defraud her by attacking her in the midst of her sorrow for her deceased husband, and by false representations as to the condition of her estate, but alleged the existence of no confidential relation, and merely claimed inadequacy of consideration. The court said the bill could not be considered as stating a case of constructive fraud arising out of some peculiar relation of the parties, but as one of actual, positive fraud, which could not be varied by the establishment of facts sufficient to create a case under a totally distinct head of equity. The opinion was, moreover, pronounced in view of evidence which totally failed to disclose any merit in the complainant's cause. We think this case and that of Eyre v. Potter have little, if anything, in common which should make the latter an authority on the point in discussion.
The appellant's next point is, that no presumption of invalidity in a transaction between parent and child which throws the burden upon a parent of showing that the transaction was fair and just, and that the child was fully advised of its rights and interests, arises merely from proof of the relation of the parties. There can be no objection to that statement as made. Nor can there be as to the next one, viz.: That in the adjudged cases there was always some circumstance of actual undue influence, inadequacy of con
“In some cases, although there may be circumstances tending in'some small degree to show undue influence, yet, if the agreement appears reasonable, it has been considered enough to outweigh light circumstances, so as not to affect the validity of the deed.”.
The tenth finding of the court below was that the second mortgage and the three deeds above described were executed by plaintiff by the direction of the defendant j that she did not know the purport of the same, and consequently the effect of the same ¿ that the same were executed without any consideration moving to herj that no attempt was made by the defendant, or any one else, to explain to her the purport and effect of the execution of said instruments • and that, considering her defective mental capacity, inexperience in business, the circumstances under which she was living, and the influence of defendant, her father, over her, it was a fraud to procure her to execute said instruments without having their purpose and effect fully explained to her. These findings fairly present the result of our investigation, and justify the-judgment of the court below; for, whatever may be said of the complaint, it is certain to our mind that the gist of the action was not that the plaintiff had lost her property by being deceived by defendant, but that she had in her trust and confidence in him, without sufficient reflection upon the effect of her act, conveyed to him everything she had without any valid
The action, we think, was brought in time.
The court below set aside the deed to the appellant as to all the land conveyed to him, with the exception of that part conveyed by him to the Spokane College. For the fifteen acres and upwards conveyed to the college the court rendered judgment against appellant for $5,421.15, being at the rate of $350 per acre, which was the value agreed upon by the parties as the true value at the date when it was parted with by appellant on the 10th day of December, 1887. Eespondent appealed from this part of the judgment, claiming that the correct measure of damages was not the value at the time of the transfer, but at the date when the suit was brought. The rule adopted by the court was the correct one in this case. It was not contended nor proven that the conveyance to the Spokane College was made in bad faith by the appellant, or with any purpose to place it beyond the reach of the appellee. In this it is clearly distinguished from the cases cited on that point by the appellee, all of which had in them some element of mala fieles. The court also allowed judgment against appellant for $3,000 received from Turner and Abernethy. The sums thus allowed by the court we think should have been reduced by the sum of $900, with interest thereon from December 17, 1883. This sum represented the value of the improvements put upon appellee’s land by her father, $500, and the sum of $400, the government price of the land.
Rehearing
ON PETITION POR REHEARING.
— With the main decision in this case we continue satisfied, for the reasons therein given. But in the petition for rehearing the appellant, Muzzy, earnestly endeavors to obtain a change in our holding in the matter of the $5,421.15 allowed for the land conveyed to Spokane College.
As will be observed, we sustained the rule adopted by the superior court, viz.; That the measure of recovery proper under the facts was the value of the land at the date of the conveyance to the college, and not at the date of the commencement of the action. The appellant, Muzzy, appealed on the whole case, and the appellee, Tompkinson, appealed from this part of the decree, she claiming that at the latter date the property was greatly more valuable than at the former one.
At the hearing the time of counsel for argument was greatly extended, but neither side reached this subject, but left it to the decision of the court on their briefs.
Our decision was against the appellee in this particular, and from the briefs of the appellant we obtained the impression that if the main case, were decided against him he was satisfied with the judgment for the value of the college land. Upon this point the brief said:
i?We think if the court erred in that matter it erred against the appellant, and not against the appellee.”
And again;
“No reason can be conceived why the rule of damages in a case of this kind should be more onerous than in trespass and conversion, yet in those cases the rule is universal*636 that the measure of damages is the value of the article at the time it was taken or converted, with legal interest from that date.”
Now, however, it is urged that there should have been no recovery at all against appellant for the college land, but that, inasmuch as the Spokane College took the land as a gift, and was, therefore, not a purchaser for value, it should have been made a party defendant, and the trust should have been impressed upon its land to the relief of Muzzy. If it were true that the conveyance to the college was without consideration, perhaps the position of the appellant would be sound. But let us see how the facts stand.
The complaint alleged that the appellant had conveyed certain land to the college, and that its value was thirty thousand dollars, and the answer did not deny either of these allegations. The testimony was all taken so that both sides rested, and the cause was set for argument June 16, 1890, without a word being said upon either side as to the college land. On December 30, 1890, however, upon the plaintiff’s motion, the court allowed her to take testimony as to the value of this land, and to introduce the deed to the college. On January 3, 1891, the testimony was taken, the court excluding all inquiry as to the value at the time the action was commenced, but allowing the value at the date of the deed to be shown. At the conclusion of the testimony both parties stipulated the value at the date of the deed to have been f350 per acre. Then the deed was introduced, which expresses a consideration of “one dollar, and other good and valuable considerations,” and, after describing the tract conveyed, contains the following:
“It is expressly agreed by and between the parties to this instrument that the tract of land last above described is to be platted by the party of the second part, its successors or assigns, in accordance with the general plan*637 adopted by said party of tbe first part in the platting of the addition above mentioned (Muzzy’s addition to Spokane Falls), to the end that all streets shall be of the same width as those in the above named addition, and continuation of the same. It is intended to convey eight blocks of land exclusive of streets,”
Now, with no plea of a defect of parties, and not a word further said in the case about this land, how can we say that there was no consideration for the' deed, or that the Spokane College, when the action was commenced, still held any portion of the tract?
But were it to appear clearly that the conveyance in question was not such as to vest the title in the college as a bona fide purchaser, it would be still a subject for discussion whether the cestui que trust could not elect either to follow the property into the hands of the voluntary grantee or to obtain in equity the proceeds of the conveyance or the value of the property from the trustee. Lathrop v. Bampton, 31 Cal. 17 (89 Am. Dec. 141) ; Bradley v. Luce, 99 Ill. 234; Long v. Fox, 100 Ill. 43,
Being satisfied with the correctness of the decision heretofore made, the petition for rehearing will be denied.
Appellant moves this court to render judgment against appellant’s sureties on his appeal bond. The statute (Code of 1891, § 1432) provides that the supreme court may render such a judgment for the amount of the judgment, damages and costs referred to in the bond, in case such damagés can be accurately known to the court without an issue and trial. But in this case the bond secures to the appellee the payment of all rents or damages to property during the pendency of the appeal out of the possession of which she is kept by reason of the appeal, and as such damages cannot be known without an issue and trial, the motion is denied.