Andola v. Picott

• Decision Date: 18 November 1896
• Citation: 46 P. 928,5 Idaho 27
• Parties: ANDOLA v. PICOTT
• Court: Idaho Supreme Court

46 P. 928

5 Idaho 27

ANDOLA v. PICOTT

Supreme Court of Idaho

November 18, 1896

EJECTMENT-FRAUDS-TENDER OF CONSIDERATION PAID-WITHDRAWAL OF TENDER.-In an action of ejectment, where the defense is the fraudulent procurement of the conveyance, and defendant seeks by way of affirmative relief to have the conveyance annulled and makes tender of the consideration paid, and on acceptance of such offer by plaintiff, withdraws the tender, it is not error for the trial court, on motion of plaintiff, to strike from the answer of defendant so much thereof as sets up an equitable defense. Testimony in this case considered and held not to sustain defense set up in answer.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed, with costs.

L Vineyard and N. M. Ruick, for Appellants.

This action was brought to recover the possession from the defendants of the premises described in the amended complaint, said right of possession being alleged to be based upon title in fee, in the plaintiff Andola, with damages for the withholding thereof. The case was tried before a jury in the district court of Ada county, Idaho on the twenty-first and twenty-second days of March, 1896, resulting in a verdict for possession for the plaintiff Andola, under written instructions of the court, expressly directing the jury to bring in such verdict. All that portion of defendants' answer to plaintiffs' amended complaint denominated their separate defense, as well as the portion following denominated a counterclaim, were stricken out by the court on the application of the plaintiffs' attorneys over the objection and exception of the defendants' counsel leaving only the denials to the complaint in said answer. This act was manifest error, for the reason that the statute of the state of Idaho gave to the defendants the right to plead in their answer as many defenses as they may have, whether legal or equitable, or both. (Idaho Rev. Stats., secs. 4183, 4187.) These defenses were both legal and equitable, and alleged a fraudulent combination or scheme on the part of the plaintiffs to overreach and defraud the defendants, and particularly the defendant, Mary D. Picott, out of the land in question. (Franklin v. Kelley, 2 Neb. 111, 112; Staley v. Housel, 35 Neb. 160, 52 N.W. 888; McTarnahan v. Pike, 91 Cal. 542, 543, 27 P. 784; Ayers v. Bensley, 32 Cal. 625, 626; Locke v. Moulton, 96 Cal. 21, 30 P. 957.) To the introduction of plaintiffs' exhibit No. 1 (the deed), the defendants objected upon the ground following: That the same is irrelevant, immaterial and incompetent; and further it appears on the face of the deed itself that after its execution by one of the defendants the same was altered, in a material particular after it was signed by Mrs. Picott and delivered by her to Andola, in this: By the insertion of the words, "Joseph H. Picott, her husband"; that this alteration was made on the sixth day of July, 1891, and signed by Joseph H. Picott on that day, and again recorded at the request of said Andola on the same day. This alteration by the plaintiff Andola is admitted by him, and the reason, or why it was done, is not explained or attempted to be. The deed is therefore void, and no title passed thereby. (1 Greenleaf on Evidence, sec. 565; 2 Rice on Evidence, 852; Trigg v. Taylor, 27 Mo. 245, 72 Am. Dec. 263; Campbell v. McArthur, 2 Hawks, 33, 11 Am. Dec. 738; Bliss v. McIntyre, 18 Vt. 466, 46 Am. Dec. 165; Benedick v. Cowden, 19 N.Y. 351; Brown v. Straw, 6 Neb. 537, 29 Am. Rep. 369; Rice on Evidence, 853; Angle v. N.W. Mutual Life Ins. Co., 92 U.S. 330; Den v. Wright, 7 N. J. L. 175, 11 Am. Dec. 546; Wallace v. Harmstad, 15 Pa. St. 462, 53 Am. Dec. 603.)

Hawley & Puckett and Hays & Johnson, for Respondents.

This is an action of ejectment for lands in Ada county. Appellants executed and delivered to respondent Andola a deed for the premises. Andola leased the property to Joseph H. Picott. Appellants refused to give possession at the expiration of the lease and claimed the deed and lease were procured by fraud. Appellant complains of the striking out of the alleged equitable defense set up in the answer. This is a question which arises purely upon the face of the pleadings. The defense in this case as shown by the pleadings is: 1. That Mary D. Picott was defrauded; that a certain deed was really intended to be a mortgage on other lands; 2. That Joseph H. Picott was so drunk when he executed the deed as to be incapacitated. The objection which appellants seek to urge here cannot be considered on this record, for the reason that the papers on which the motion was made and the order of the court are not here. The only record of this ruling of the court is in a recital in the statement on motion for new trial. (Rev. Stats., secs. 4438, 4439; Spence v. Scott, 97 Cal. 181, 31 P. 52, 939.) If the defendants had been defrauded as claimed, they could do either of two things: affirm the contract and stand on it, or rescind and claim nothing under it. From the answer it appears that they elected to rescind and are willing and ready to return the consideration received. As they desired to rescind it was necessary to put respondents in statu quo. (Caldwell v. Ruddy, 2 Idaho 1, 1 P. 339; Hammond v. Wallace, 85 Cal. 522, 20 Am. St. Rep. 239, 24 P. 837; Pico v. Gallardo, 52 Cal. 206; Hughes v. Davis, 40 Cal. 117; Montgomery v. Spect, 55 Cal. 352; Van Trott v. Wiese, 36 Wis. 439; Joest v. Williams, 42 Ind. 565, 13 Am. Rep. 377.) This appellants declined to do, and this portion of the answer was stricken out. The pleadings contained no allegations of fraud or intoxication; no evidence on those points could be introduced. Frauds or intoxication are equitable defenses and must be pleaded. (Wetherly v. Straus, 93 Cal. 286, 28 P. 1045.) "Fraud is never to be presumed, and whenever it constitutes an element of a cause of action or of a defense which is of an affirmative nature, and invoked as conferring a right against the plaintiff, it must be alleged." (McCreary v. Marston, 56 Cal. 403; Pomeroy on Remedies, sec. 94; Sharon v. Sharon, 68 Cal. 29, 8 P. 614; Wilson v. White, 84 Cal. 239, 24 P. 114; McKierman v. Lenzen, 56 Cal. 61.) Appellant claims the deed could not be introduced in evidence because it had been altered. As the record stood at the time of the introduction of the deed the land in controversy was claimed by Mary D. Picott, wife of Joseph H. Picott, as her separate property. Such being the case it appeared on the introduction of the deed that Mary D. Picott had executed the deed on April 11, 1891, and Joseph H. Picott had joined in such execution July 6, 1891. Of course the difference in the dates of signing and acknowledging made no difference. (Lessee of Newell v. Anderson, 7 Ohio St. 12; Lester v. White, 52 Vt. 46; Ludlow v. O'Neil, 29 Ohio St. 181; Devlin on Deeds, sec. 469; Lewis v. Johns, 24 Cal. 103, 85 Am. Dec. 49.) In conveying her real estate there is this limitation: the instrument must be in writing signed by the husband and wife, and acknowledged by her. (Rev. Stats., sec. 2498.) Signing by the husband is all that is necessary; it need not even be acknowledged by him. The contract is the wife's and only needs her husband's consent manifested by his signature to make it complete. (Woodward v. Seaver, 38 N.H. 29; Stone v. Montgomery, 35 Miss. 83; Pease v. Bridge, 49 Conn. 58; Dentzel v. Waedie, 30 Cal. 149; Clark v. Clark, 16 Or. 224, 18 P. 1; Roberts v. McIntire, 84 Me. 362, 24 A. 867; Schley v. Pullman Palace Car Co., 25 F. 890; Godfrey v. Thornton, 46 Wis. 677, 1 N.W. 362.) Hence the so-called alteration was immaterial, and the deed was properly admitted. (Rev. Stats., sec. 5998; Sedgwick v. Sedgwick, 56 Cal. 213.) As the deed to plaintiffs was valid the question of estoppel does not arise. If it did arise we would cite: Norton v. Nichols, 35 Mich. 147; O'Dell v. Little, 82 Ky. 146; Spafford v. Warren, 47 Iowa 47; Pilcher v. Smith, 2 Head, 208; Shroyer v. Nickell, 55 Mo. 264.

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

This is an appeal from a judgment of the district court for Ada county in an action of ejectment. The facts as shown by the record are about as follows: On the eleventh day of April 1891, the defendant Mary D. Picott, a married woman, was the owner and in possession of certain real estate situate in Ada county, about two and one-half miles from Boise City, in what is known as "Cottonwood Gulch," the same being her separate property, and being about acres in extent. This property the defendant Mary D. Picott had owned and occupied for nearly twenty years prior to said eleventh day of April, 1891. On the said eleventh day of April, 1891, said Mary D. Picott, by warranty deed, conveyed said premises to the plaintiff A. R. Andola, for the expressed consideration in the deed of $ 6,000. It appears from the record that the actual consideration paid by the grantee was $ 1,500. It appears that, at the time of the execution of such deed by the defendant Mary D. Picott, her husband, Joseph H. Picott, was not in the country. Mary D. Picott received the consideration of $ 1,500. On the sixth day of July, 1891, Joseph H. Picott signed and acknowledged the deed, executed and delivered by his wife, to plaintiff Andola, on the 11th of April, 1891, and received therefor from the plaintiff Andola a consideration of $ 100. On the same day, the plaintiff gave to said Joseph H. Picott a lease of said premises for six months from the first day of July, 1891. On the twenty-second day of January, 1892, plaintiff brought action in the probate court for Ada county to recover possession of said premises. There seems to have been a number of factions, motions, dismissals, and other proceedings before the probate court,...