Rasmussen v. McKnight, 3 Utah 315

Rasmussen v. McKnight

3 Utah 315 | Utah | 1883

Lead Opinion

Emerson, J.:

The only question raised on this appeal is, Does the complaint state facts sufficient to constitute a cause of action ?

*319It alleges, in substance, that the plaintiff Rasmussen, being the owner of certain premises in Salt Lake City, and described in the complaint, entered into a contract with the defendant James McKnight to sell and deed to him the premises for the sum of four hundred and seventy dollars, McKnight to pay one hundred dollars in cash, and execute a mortgage back to secure the balance. That the defendant named, pretending to be a lawyer, drafted said papers, and when completed, read them to the plaintiff named, as in pursuance of the contract, viz., a deed to McKnight and a mortgage back from him to the plaintiff named, and he signed the deed under that belief. “ That since that time the plaintiff Rasmussen has discovered that the said deed, as it appears upon record, runs in the name of the wife of the said James McKnight, as grantee, to wit, the said Mary Ann McKnight; that the said plaintiff Rasmussen does not know whether the said McKnight obtained the said deed in his wife’s name by misreading the same to plaintiff Rasmussen, or by obliterating his name and putting in hers; and does allege that by whatever means it was done, it was done fraudulently and for the purpose of robbing and wronging the said plaintiff Rasmussen.”

It then alleges a deed of one half the land and one half the cause of action to the plaintiff Brown; that plaintiff Rasmussen, previous to the discovery of the fraud, commenced an action against James McKnight alone to foreclose the mortgage ; that afterwards a decree was obtained, and the property sold to plaintiff Rasmussen for less than the face of the mortgage debt, and he obtained a deed therefor conveying all the interest of James McKnight; “ that the said Mary Ann McKnight received the said conveyance without any consideration moving from her; that she is a party to and cognizant of the said frauds herein alleged.” And then the prayer for relief.

The defendants demurred upon various grounds, but none, except the one mentioned, viz., “ that the complaint does not state facts sufficient to constitute a cause of action,” was argued or called to our attention. We shall therefore treat the others as abandoned.

On the ground of demurrer stated, the complaint is assailed principally because the facts constituting the fraud are not more specifically stated.

*320The plaintiff Rasmussen states all that he knows about the transaction, and that a fraud was perpetrated upon him in one of two ways, by which he was led to believe that he was conveying the land to James McKnight, and not to his wife, or he certainly would not have taken a mortgage from James McKnight to secure the unpaid purchase money, for if he .intended to or knew that he was deeding the property to Mrs. McKnight, the mortgage from the husband was no security at all. If it was accomplished in either of the methods he mentions, the statements he makes are the facts constituting the fraud — statements of facts which the court can see do, in fact, constitute a fraud. The plaintiffs’ statement of how it was accomplished must necessarily and under the circumstances, be in the alternative, and the complaint is not bad for that reason. The complaint alleges that the defendant Mary Ann McKnight was a party to and cognizant of the fraud. She is a proper party, and the complaint states a cause of action against her. She would be a proper and necessary party even if she knew nothing about the fraud. Under the circumstances alleged in the complaint, aside from the allegation of her knowledge of and participation in the fraud, she is the holder of the naked legal title, which the plaintiffs seek to have subjected to their equities. “Equity will relieve, by canceling the fraudulent apparent transfer, and by compelling a reconveyance or reassignment, even as against the holder who is innocent of wrong:” 2 Pomeroy’s Eq. Jur., sec. 913.

The judgment of the court below is reversed, with costs, and the cause is remanded to the third district court, with directions to that court to overrule the demurrer.

Hunter, C. J., concurred.

Dissenting Opinion

Twiss, J.,

dissenting:

This is a suit in which the plaintiffs pray that a deed mentioned in the complaint be decreed to be a fraud upon the rights of the plaintiff Rasmussen, and for certain other relief, special and general.

The complaint is as follows: “ Plaintiffs, by amended complaint, complain of defendants, and allege that the said Hyrum *321Rasmussen, on tbe eleventh day of March, 1880, was the owner and in possession of the following-described property, to wit: Part of lot 3 in block 43, as platted in plat B, Salt Lake City survey, Salt Lake county, Utah Territory, commencing two and a half rods west from the south-east corner of said lot, thence north two hundred and twenty feet, thence west thirty-six and a quarter feet, thence south two hundred and and twenty feet, and thence east thirty-six and a quarter feet to the place of beginning. Also the right of way perpetually over that strip of land lying contiguous to the above-described part and parcel of lot 3 in block 43, and on the west side thereof, the said road over said strip being eight feet in width along the entire western side line or boundary of the aforesaid lot herein,conveyed; and on the last said date made a contract of sale with the defendant James McKnight to sell the same to him for the sum of four hundred and seventy dollars, and to receive one hundred dollars in cash down payment, and the balance to be secured by a mortgage on the premises. That the said James McKnight, pretending to be a lawyer himself, draughted the papers, and when completed read them to the plaintiff Rasmussen, as in pursuance of the contract, to wit: A deed to McKnight and a mortgage back to Rasmussen for thre'e hundred and seventy dollars, the purchase price, and said plaintiffs executed the deed in that belief. That since that time the plaintiff Rasmussen has discovered that the said deed, as it appears upon the record, runs in the name of the wife of the said James McKnight, as grantee, to wit, the said Mary Ann McKnight. That the said plaintiff Rasmussen does not know whether the said McKnight obtained the said deed in his wife’s name by misreading the same to plaintiff Rasmussen, or by obliterating his name and putting in hers; and does allege that by whatever means it was done, it was done fraudulently and for the purpose of robbing and wronging the plaintiff Rasmussen. That the said plaintiff Rasmussen has deeded and conveyed one half of the said land and one half of the cause of action herein set forth to said plaintiff Arthur Brown, to wit, on or about the fourteenth day of July, 1882. That on the twelfth day of March, 1881, plaintiff Rasmussen commenced foreclosure proceedings by suit in this court against the said James Mc*322Knight alone, the said Basmussen at that time not knowing of the change in the grantee in his deed, and not having discovered the said frauds of said defendants, and on the twenty-ninth day of March, 1881, a decree of said court was duly made and entered, directing the sale of the above-described property, and the same was duly sold to the said plaintiff Bas-mussen on the twenty-third .day of April, 1881, by the United States marshal for the territory of Utah, for the sum of four hundred and thirteen dollars and fifty cents; that the said property has never been redeemed or the said decree.paid. The said United States marshal executed a deed conveying all of the interests of said James McKnight to Basmussen, in pursuance of the statute in such case made and provided, six months after the sale, April 25, 1881. That the said Mary Ann McKnight received the said conveyance without any consideration moving from her; that she is a party to and cognizant of the said frauds herein alleged; that the reception of the said deed by her in her name was a fraud upon said plaintiff Basmussen.

“ Plaintiffs pray judgment that the said deed to Mary Ann McKnight may be decreed to be a fraud upon the rights of the said plaintiff Basmussen, and that the said mortgage from the said James McKnight be so corrected as to include all the interests conveyed in said deed to Mary Ann McKnight or any other person, and that said plaintiffs may be decreed to be the owners of said property, and for such other relief as may be proper in the premises, and for costs of suit.

“ ARthub, 'Brown,

“ B. B. Tripp,

“Attorneys-for plaintiffs.”

This complaint was duly verified. To this complaint the defendants filed a demurrer as follows:

“Come now the defendants and demur to the plaintiffs’ amended complaint, and for causes of demurrer allege:

“ 1. That there is a misjoinder of parties plaintiff and defendant in this: 1. That said plaintiff Brown is not a proper party to the action, because no profert has been made of his interest except the recital in said complaint; which shows that his interest, if any, was for the mere purpose of litigation and without consideration, and that he was not a party *323to the original transaction. 2. That the said Mary A. McKnight is not a proper party defendant because she was not a party to the original transaction, nor does the complaint show that she is the owner of or in possession of the land in dispute.

“2. That the complaint does not show that plaintiff Rasmussen’s claim was fully paid by former suit in foreclosure and sale, nor that plaintiffs have been refused possession of said land by either of the defendants, nor that said plaintiffs have made any effort to obtain possession of said land by writ of possession or otherwise, nor that plaintiffs have ever demanded possession of the same.

“ 3. That said complaint does not state facts sufficient to constitute a cause of action.

“ James McKnight,

“Attorney for defendant.”

The complaint sets forth that the plaintiff Rasmussen was at the time therein alleged the owner of and in possession of certain real estate and right of way therein described, and a contract between Rasmussen and James McKnight of sale, but whether of the described land and right of way or for the right of way alone is quite uncertain, but I will assume it was for both. The complaint also alleges that James McKnight wrote a deed and mortgage, and read them “as in pursuance of the contract” — a deed to McKnight and a mortgage back to Rasmussen for the unpaid balance of the purchase money.” Down to this time in the history of the transaction, as set forth in the complaint, there is no allegation that either the deed and mortgage was not in all respects written in strict compliance with the agreement between Rasmussen and James McKnight. The allegation that since the time the papers were read by James McKnight to Rasmussen, the plaintiff “ Rasmussen has discovered that the said deed, as it appears upon the record, runs in the name of the wife of the said James McKnight as grantee, to wit, the said Mary Ann McKnight,” is no allegation that the deed was either frauduently written or read by James McKnight; or of any fraud whatever imputable to either James McKnight or to his wife : Pomeroy’s Remedial Rights, 1st ed., 563.

If the plaintiffs claim that the deed contained a name as *324the grantee therein other than the name o£ the person who by agreement was to be the grantee thereof, or that in this respect it was falsely read to Kasmussen by James McKnight, and that by reason of such fraud or mistake in the insertion of a wrong name as grantee, or by such false reading of the deed, he executed and delivered it in ignorance of its contents as to the grantee, then in such case, upon the proper or necessary allegations setting up the facts constituting the alleged fraud, the validity of such deed might be inquired into.

The allegation “ that the plaintiff Rasmussen does not know whether the said McKnight obtained the said deed in his wife’s name by misreading the same to plaintiff Rasmussen or by obliterating the name and putting in hers,” is not an allegation that it was done in either way, or that there was any fraud on the part of either of the defendants, and is not an allegation of ignorance, or want of full and complete knowledge of the facts on the part of his co-plaintiff Brown ; and the further allegation "that by whatever means it was done, it was done fradulently, and for the purpose of robbing and wronging the said plaintiff Rasmussen,” does not cure or help the defect.

Although it is a general rule of pleading that the plaintiff is not required to allege in detail all the minute facts constituting the alleged fraud, yet a general certainty is required in these matters, and the facts constituting the fraud complained of must appear on the face of the complaint. Fraud is a conclusion of' law derived from facts, and is not to be presumed: it is found only when the facts make it apparent. A general allegation of fraud in a pleading is not good when demurred to: The Railroad Company v. The Supervisors of Plumas County, 37 Cal. 354; Bliss on Code Pl. 211; Capuro v. Builders’ Ins. Co., 39 Cal. 123; Triscony v. Orr et al., 49 Id. 612.

The foregoing being in my opinion conclusive as to the sufficiency of the complaint, it is not necessary to consider the other questions raised by the demurrer, and ably presented by the brief of the counsel for the respondents.

In my opinion, the ruling of the district court in sustaining the demurrer ¿should be sustained.