13 P. 19 | Idaho | 1887
This action was brought to set aside a deed from plaintiff to defendant, on the ground that it was procured by fraud. Decree was granted, setting aside the deed, and from the decree and order denying a new trial appeal is taken. The appellant specifies three errors upon which he relies: 1. That the court erred in excluding evidence offered by the defendant that he had furnished the money that purchased the
In Schroeder v. Johns, 27 Cal. 281, the court says: “While agreeing with counsel that the court must find as to the truth of every issue of fact found in the case, we think the finding need not be directly and pointedly made that each of the several allegations of the complaint or answer is not true. But if the court finds such facts as will be sufficient .... to necessarily determine every material issue in the cause, the requirement of the law will, in that respect, be satisfied.” (See, also, to the same effect, Bigelow on Frauds, above cited.)
In the case at bar the court finds that on the twenty-seventh day of May, 1884, the plaintiff was the owner of certain real estate of the value of $1,500; that .on said day she made the deed, whereby she conveyed it to the defendant for the consideration of two dollars; that, at the time she 'made the deed, the plaintiff was so sick, weak, and enfeebled, both mentally and physically, by disease and prolonged sickness, that she did not know or comprehend what ldnd of an instrument she was signing; that she had been a prostitute for years, and that the only relation existing between her and defendant were those resulting from illegal cohabitation; that prior to the making of the deed the defendant had been very assiduous'in his attentions to plaintiff, and that after said deed was procured his attentions almost entirely ceased; that the property conveyed by the deed constituted plaintiff’s entire estate; that she had eight children; that a short time before the making of said deed she had made a will devising said property to her children, and that a few days before the execution of said deed, with the assistance of defendant, she had destroyed said will; that said deed was executed about midnight, before a notary who had been sent for at the request of the defendant, there appearing no necessity for such unusual proceedings or haste; that plaintiff did not know the character of the instrument that she had
In the citation from Dániell’s Chancery Practice heretofore made it is said “that everything intended to be proved must be alleged”; but this would hardly be construed to mean that all the evidence by which it was to be proved must be pleaded. In the ease at bar the gravamen of the charge is that, the plaintiff being sick and enfeebled, the defendant took advantage of her condition, and procured the deed. The fact that the plaintiff had eight children to whom a few days before she had willed her property; that the defendant had assisted her to destroy said will; that defendant had sent for a notary at midnight, without any apparent necessity for haste, to have the deed executed — are circumstances properly admitted in evidence, and, if competent evidence, we think findings upon them would be responsive to the issues. Appellant claims that, defendant is entitled to a finding as to the allegation in the complaint that he falsely represented to plaintiff that the deed was a will. While a finding that such allegation was true might serve to make the fraud more apparent, yet the finding that it was not true could hardly relieve the defendant from the effect of the other findings in the case. The complaint does not in terms
We find no error, and the judgment below is affirmed.