ELIZABETH NOBLES (Fоrmerly ELIZABETH HUTTON), by C. M. CURLEY, Her Guardian, Respondent, v. D. D. HUTTON, Appellant.
Civ. No. 376
Third Appellate District
November 20, 1907
December 20, 1907
7 Cal. App. 14
Hart, J.
A rehearing is therefore denied.
Hart, J., and Chipman, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 14, 1908.
ACTION TO SET ASIDE DEED-WANT OF CONSIDERATION-FIDUCIARY RELATIONS-FRAUD AND UNDUE INFLUENCE-SUPPORT OF FINDINGS.- In an action to set aside a deed executed by a mother to her son, where the court found that when the deed was executed, the plaintiff was old, infirm, of failing memory, and of unsound mind, and by reason thereof incapacitated from attending to business, and defendant took advantage оf such incapacity, and procured her to sign and acknowledge the deed without consideration; that the plaintiff was without independent advice, and that defendant by taking advantage of plaintiff‘s mental weakness, and by the use of undue influence arising out of the relationship between them of mother and son and of principal and agent, induced plaintiff to execute the deed; held, that the findings are substantially supported by the evidence and that a case of breach of fiduciary relations, and of constructive fraud and undue influence, are clearly established, entitling plaintiff to avoid the deed.
ID.-INCAPACITY NOT OF PARAMOUNT IMPORTANCE-Although thеre is some evidence tending to sustain the finding of the plaintiff‘s incapacity and of her inability to understand the nature and result of the deed, yet her incapacity to that extent is not of paramount importance in view of the other facts presented by the record, establishing the breach of fiduciary relations and constructive fraud and undue influence.
ID.-GIFT TO AGENT-UNDUE INFLUENCE EASILY EXERCISED-PRESUMPTION OF FRAUD-BURDEN OF PROOF.-A gift of valuable property by a principal to an agent under circumstances in which undue influence
ID.-PRESUMPTION-FRAUD BETWEEN PARENT AND CHILD-ADVANTAGE TAKEN OF FEEBLE MIND-FRAUD UPON OTHER CHILDREN-BURDEN NOT SUSTAINED.-The relation of parent and child, where business transactions are carried on between them, is the source of the very highest consideration of confidence and trust. Where a parent, if not totally incompetent, was so old and enfeebled in mind that she might readily be imposed upon by her son, who induced her to leave her home and reside with him and to convey her property to him to the exclusion of other children who were filial and in amicable relation with their mother, the transaction is presumptively fraudulent, and will be avoided wherе the son does not sustain the burden to show that the deed was made freely and voluntarily with full knowledge of all the facts, and with perfect understanding of the effect of the transfer.
ID.-INDEPENDENT ADVICE ESSENTIAL.-Persons standing in a confidential relation toward others cannot entitle themselves to hold benefits which others may have conferred upon them, unless they can show to the satisfaction of the court that the person by whom the benefits have been conferred had independent advice in conferring them, which should be given in private by some one of such person‘s own selection, and when the grantor is not surrounded with dominating influences favoring the transfer.
ID.-EVIDENCE OF MENTAL INCOMPETENCY-QUESTION OF FACT.-Where a question of mental incompetency is involved, although it relates primarily to the time when the act was performed, yet evidence of the mental condition of the grantor before and after the execution of the deed is competent as bearing upon that question, and the question is one of fact to be determined by the trial judge, who is the exclusive judge of the credibility of the witnesses.
ID.-TESTIMONY OF PERSONS ACQUAINTED-REMOTE KNOWLEDGE-HARMLESS RULING-OBJECTIONS.-The admission of testimony of persons who were formerly intimately acquainted with the plaintiff on the subject of her mental incompetency, but not recently acquainted with her mental condition, goes rather to the weight than to the admissibility of the testimony, but under the other facts in the case, any error in admitting the evidence of incompetency is harmless.
ID.-EVIDENCE OF WANT OF CONSIDERATION FOR DEED.-Evidence of witnesses to knowledge of the fact that no consideration was paid for the deed was admissible, not as contradicting the written instrument, but for the purpose of showing that it was void because obtained without consideration, by fraud and undue influence.
The facts are stated in the opinion of the court.
Weldon & Held, for Appellant.
W. G. Poage, and Thomas, Pemberton & Thomas, for Respondent.
HART, J.-The purpose of this action is to set aside a certain deed, purporting to convey the lands therein described tо defendant, and to quiet title to said lands.
The plaintiff, having been, prior to the commencement of this action, adjudged by the superior court to be an incompetent, and a guardian of her estate and person thereupon appointed, brought the suit and is a party hereto by her general guardian.
Judgment was awarded to plaintiff, setting aside the deed and quieting her title to the lands alleged to have been thereby conveyed.
The appeal is from the judgment and the order denying defendant a new trial.
The defendant is a son of the plaintiff, and it is charged in the complaint that the latter, while in a state of mentаl incompetency, conveyed to the defendant, without a valuable consideration, the lands involved in this controversy. It is alleged that the plaintiff, by reason of the infirmities of old age, was without capacity to transact business, or to realize and understand the effect of her act in executing said deed to defendant; that she was illiterate and unable to read, and at the time of the transaction complained of had no opportunity to secure and receive the counsel and advice of any other relative, friend or acquaintance; that the plaintiff was taken by the defendant and his wife tо Ukiah, a distance of about fifty miles from her home, and while among strangers, signed and acknowledged the deed; that defendant, taking advantage of the said infirmity of mind and illiteracy of plaintiff, and of his relationship to her, imposed upon said plaintiff and unduly influenced her to transfer to him said property, which, it is alleged, is of the value of about $60,000.
The principal contention of the appellant is that the evidence is insufficient to support the findings. The testimony upon behalf of plaintiff upon the question of her alleged mental incompetency was mostly from witnesses who saw very little of her during several months prior to the date of the execution of the deed. But the witness, Avella, who was a lessee of the plaintiff of certain land, testified that he met and talked with her frequently, and that he noticed that her mind was failing and that she appeared to have a poor memоry, etc. Avella said that, after he learned of the execution of the deed, by which she conveyed her property to the defendant, he mentioned the circumstance to her and that she denied having transferred the land to defendant. This witness expressed the opinion that plaintiff was incapable of understandingly attending to business. There was other testimony upon this point by witnesses who, as stated, had not seen much of plaintiff for three or four months before the transfer was made. Neighbors of plaintiff, testifying for the defense, stated that, up to the time of the transaction out of which this suit arises, she appeared to bе of sound mind and fully capable of conducting her business affairs. The attorneys who drew the deed, and who were present when plaintiff signed and acknowledged it, testified that she seemed on that occasion to be intelligent and thoroughly appreciative of the nature and effect of the transaction. It would
The evidence shows that, besides the defendant, there were living at the time of the execution of the deed and when the trial was had, several children of plaintiff, and that between these children and plaintiff the most amicable filial relations existed. It further appears that the defendant had been, for some time prior to and up to the date of the conveyance to him of the property in dispute, the agent of plaintiff, acting as such under a power of attorney. It is also clear that, while, as we have suggested, the evidence may not be strong as to her alleged incompetency, there can be no doubt that the plaintiff had to some extent grown mentally feeble and of poor memory and was certainly in a condition of mind in which she could be easily influenced by one in whom she had confidence. The power of attorney to which we have referred clothed the defendant with authority to “sue for and collect all such sums of money, debts, rents, dues and accounts and other demands whatsoever, which are or shall be due, owing and payable to me or detained from me in any manner whatsoever,” etc. The authority thus conferred upon the defendant does not, it is true, at least by express language, relate to the property in controversy, but if, as appellant contends, said power of attorney does not establish confidential and fiduciary relations between the parties as to the property in dispute, there is still much significance in the circumstance of defendant‘s agency of plaintiff in the fact of the confidence thereby reposed in the defendant by the plaintiff. The evidence shows that the plaintiff was induced
The circumstances under which the transfer of the property was made to the defendant were, upon their face, such as to create suspicion as to the good faith of the transaction, so far as defendant‘s part in it was concerned. Indeed, the mere statement of the circumstances discloses, in our opinion, a strong case of constructive fraud. The judge of the court below, who saw and heard the witnesses, and who was in a position to determine the weight to which the testimony of the witnesses was entitled, upon the evidenсe through which the circumstances attending the transaction were developed, found that not only undue influence was practiced by defendant, but that the transaction was constructively fraudulent. With this finding we do not feel at liberty to interfere.
There is no room for doubt, under the evidence as presented here, that the relations existing between plaintiff and defendant were confidential and therefore of a fiduciary character. The evidence clearly shows that the plaintiff reposed in the defendant especial confidence and trust, and the court found that “defendant was at the time of the execution of said written instrument and for many months prior thereto had been continuously the agent of plaintiff and was by her intrusted with the management and conduct of all her business,” etc.
The conclusion of the trial court from this finding was that the conventional fiduciary relations between plaintiff and defendant extended to all transactions between them relating to plaintiff‘s business affairs, whatever of her property they might involve, so far as any dealings defendant might have with her in his own behalf were concerned. With this conclusion we are, as before indicated, perfectly satisfied.
A relation of trust and confidence being established between these parties through the authority as agent vested in defendant by plaintiff, it was the duty of the former to act in perfect good faith in his dealings in his own behalf with said plaintiff in a transaction relating to her property, independent of any consideration of his duty toward her as
In Pulsifer v. Paddock, 43 Kan. 718, [23 Pac. 1049], where a daughter obtained a deed from her aged and invalid father to a valuable piece of land without consideration and which conveyance was set aside, the Kansas supreme court lays down the rule in cases of the character of the present one as follows: “In such a case as this, the burden of establishing the perfect fairness and equity of the conveyance to Mrs. Paddock was thrown upon her, in view of her father‘s age, sickness, and feebleness of mind, and the close relation of the parties. Confidence was necessarily reposed in Mrs. Paddock. If that confidence was abused in procuring the deed, the trial court very justly set it aside.”
Added to the “close” natural relationship of the parties here is, it must always be remembered, the further relation of confidence and trust created by the authority as agent conferred upon the defendant by the plaintiff.
But the relation of parent and child, where business transactions are carried on between them, is the source of the very highest considerations of confidence and trust. Confidence in such a case originates in and proceeds from natural laws, and, generally speaking, is innate and an essential part of the
“It is a well-settled rule of equity jurisprudence, that all gifts, contracts, or benefits, from a principal to one occupying a fiduciary or confidential relation to him, are constructively fraudulent and void. The court, in such cases, acts upon the principle that if confidence is reposed it must be faithfully acted upon; if influence is acquired it must be kept free from the taint of selfish interest, and cunning and overreaching bargains. In this class of cases there is often found some intermixture of deceit, imposition or overreaching advantage or other mark of positive or direct fraud. But the principle upon which courts of equity act in regard thereto stands independent оf any such ingredient, upon a motive of general public policy. Among the relations subject to the foregoing rule are those of parent and child, attorney and client, and principal and agent.”
We have examined with care all the authorities cited by appellant upon the point under discussion and find nothing therein inconsistent with the views here expressed. The case of Soberanes v. Soberanes, 97 Cal. 140, [31 Pac. 910], was an appeal from the judgment upon the judgment-roll alone. The court held that the findings could not be disturbed because, in the absence from the record of the evidence from which the findings were deduced, the evidence was presumptively
Here, as seen, it is alleged and the proven circumstances show, that a confidential relation existed between the parties, and a conveyance made without consideration by one who, if not totally incompеtent, was at least enfeebled in mind.
The evidence, as already appears, shows that for nearly a year before the deed was executed, the plaintiff resided with the defendant and his wife, and during that time was in constant association with and the companion of the latter. She had returned to her farm, but for the purpose of making the deed was brought by the defendant to Ukiah, and when the transaction was consummated she was attended only by
It is a well-established principle that persons standing in a confidential relation toward others cannot entitle themselves to hold benefits which those others may have conferred upon them, unless they can show to the satisfaction of the court that the person by whom the benefits have been conferred had independent advice in conferring them. (Yordi v. Yordi, 6 Cal. App. 20, [91 Pac. 348, 351]; Rhodes v. Bate, L. R. 1 Ch. 252; 2 Pomeroy‘s Equity, sec. 958; Slack v. Rees, 66 N. J. Eq. 447, [59 Atl. 466]; Coffey v. Sullivan, 63 N. J. Eq. 296, [49 Atl. 520]; Haydock v. Haydock‘s Exrs., 7 Stew. (N. J. Eq.) 570, [
There are innumerable other cases than those cited upon all the points involved in this case, sustaining the conclusions we have reached; but it would be useless to multiply authorities upon principles so well established and understood in their application to such circumstances as are found here. We may, however, state the sum of the case here in the language of White v. Daly (N. J. Ch.), 58 Atl. 929, particu-
As stated in the beginning of this opinion, the principal claim of the appellant why a reversal should be ordered is that the evidence does not support the findings. In their elaborate and able brief the learned counsel discuss at length and in detail the evidence to show that the findings are barren of sufficient support. It is declarеd that the evidence shows that some of the witnesses for plaintiff are interested in the result of the action-a fact which we are asked to consider-and that most of the testimony upon the mental condition of the plaintiff is worthy of but little weight, because it relates to a time anterior and subsequent to the date of the execution of the deed, and that, consequently, she failed to make out a case of incompetency at the very time the deed was signed and acknowledged. It is true that the test in a case of this character, where mental incompetency is relied upon to set aside an instrument transferring property, is the condition of the party whose act is challenged upon that ground at the time said act was performed; but it is also true that testimony as to the mental condition of the party before and after the time of the making of the instrument is admissible for the purpose of disclosing circumstances tending to show her probable condition of mind at the time of the transaction. As before stated, however, the evidence and its weight are matters for the trial judge trying the facts to pass upon and determine, and his conclusions thereon, where, as here, there is some evidence to show plaintiff‘s incоmpetency when she made the deed, could not be interfered with by a reviewing court, unless there appeared from the record such inherent weakness in the proofs as to justify an appellate court in saying that, as a matter of law, they do not sustain the findings. A trial judge, to whom is submitted the decision of questions of fact, may disbelieve the uncontradicted testimony of certain witnesses and ignore it
But, as we have attempted to show, even if it may be said that, as a matter of law, the evidence upon mental incompetency is, upon its face, too weak to support the finding upon that point, there are other considerations presented by the record which, being fully supported by proof, positive and presumptive, justify the judgment.
Certain rulings of the court to which exceptions were reserved at the trial are assigned here as prejudicial errors. The witness, Nobles, husband of plaintiff, from whom he had been separated for about a year, and who had not seen her for nearly a year, was permitted, over an objection, to give his opinion, as an intimate acquaintance (
It is also contended that the court erred in permitting the witnesses, McNab and Hirsch, to testify that nо actual consideration passed for the deed at the time it was executed. In support of this contention the cases of Hendrick v. Crowley, 31 Cal. 472, and Arnold v. Arnold, 137 Cal. 296, [70 Pac. 23], are cited. These cases do not sustain the contention. In the last-mentioned case, the court, after declaring the
We find no prejudicial errors in the record.
The judgment and order are affirmed.
Chipman, P. J., and Burnett, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on December 20, 1907, and the following opinion was then rendered thereon:
HART, J.-We have carefully examined the petition for a rehearing herein and observe nothing therein persuading a different conclusion from that arrived at in the main opinion. The petition involves practically only a repetition of an argument based upon the evidence and the facts thereby established. We are unable now, as we were upon the original investigation of the record, to see our way clear to hold that the evidence, as a matter of law, is insufficient to sustain the findings of the trial court.
Our attention has, however, been called to two immaterial inaccuracies in the statement of the facts in the original opinion. We therein stated that prior to the commencement of the action the plaintiff, Mrs. Hutton, had been declared an incompetent and a guardian of her estate and person thereupon appointed by the superior court. The fact is, as we find upon re-examination of the record, she began the action before she was adjudged an incompetent, and the prоceeding in which she was so declared was consequently had after the suit was instituted.
We also stated that Mrs. Hutton, prior to the execution of the deed, was induced to leave her farm and take up her residence with defendant and wife; whereas, the record discloses that she was living in town at the time she was separated from her husband and that thereafter she went to the home of the defendant.
It is too clear to justify the time in making the suggestion that these immaterial inaccuracies cannot, in the remotest de-
It must be plainly manifest that whether Mrs. Hutton was declared an incompetent before or after the commencement of the suit could have very slight material bearing upon the question of her competency at the time of the transaction from which the suit arises. And whatever weight the circumstance, happening as it really did, might carry, was for the jury to determine.
Still less could the fact of her having been taken from her home in Ukiah to the residence of the defendant, before the deed was signed and acknowledged, influence the determination of the ultimate facts in the case.
The petition for a rehearing is denied.
Chipman, P. J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 16, 1908.