Hoptowit v. Brown

• Decision Date: 23 May 1921
• Docket Number: 16214.
• Parties: HOPTOWIT v. BROWN et ux.
• Court: Washington Supreme Court

198 P. 370

115 Wash. 661

HOPTOWIT v. BROWN et ux.

No. 16214.

Supreme Court of Washington

May 23, 1921

Department 1.

Appeal from Superior Court, Yakima County; Geo. B. Holden, Judge.

Action by Hattie Purns Hoptowit against Reese B. Brown and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

Preble McAulay & Meigs, of Yakima, and Ellis &amp Evans, of Tacoma, for appellants.

Griffin & Griffin, of Seattle, for respondent.

FULLERTON J.

On May 5, 1919, the respondent, Hattie Purns Hoptowit, conveyed by warranty deed to the appellant Reese B. Brown an 80-acre tract of land situated on the Yakima Indian reservation. In this action the respondent recovered in damages against the appellants based on the ground that she had been induced to sell the land at much less than its actual value by false and fraudulent representations made by the appellant Reese B Brown, and confirmed by her brother, whom the appellant had hired for that purpose. The appeal is from the judgment entered.

The first assignment of error questions the sufficiency of the complaint, and it is necessary to notice its allegations. In the complaint it is alleged that the respondent is an Indian woman, of very limited education, wholly inexperienced in business affairs; that shortly before the execution of the deed she had been left a widow; that the land in question had been allotted to her by the government of the United States many years before the execution of the deed; and that a fee patent had been issued to her for the land, but shortly before such time, a fact which she did not then know. It is further alleged:

'That on or about the 5th day of May, 1919, the plaintiff was then sick and confined in the St. Elizabeth Hospital, in the city of Yakima, Yakima county, Wash., and had shortly theretofore been confined, and was very weak and in ill health, both in body and mind. That at about 4 o'clock in the afternoon of said day the plaintiff's brother Phillip Purns, upon whom the plaintiff had relied for advice in business transactions, and in whom the plaintiff had and reposed full confidence, came to plaintiff and informed plaintiff that the defendant Reese B. Brown desired to purchase from the plaintiff said lands above described, and that he was willing to pay therefor the sum of $14,000. That the plaintiff informed her brother, Phillip Purns, that she did not desire to sell said lands for $14,000, or at all. That thereafter, and on the same night, and at about 9 o'clock p. m., the plaintiff's brother, Phillip Purns, and the defendant Reese B. Brown returned to the hospital, in which the plaintiff was then confined, and to the plaintiff's room, at which said time and hour the said Reese B. Brown wrongfully, fraudulently, maliciously, and with the intent and purpose of wronging, cheating, and defrauding this plaintiff out of said lands, and for the purpose of procuring a conveyance of said lands, and for the purpose of procuring a conveyance of said lands at much less than their real value, in the presence of plaintiff's brother, Phillip Purns, told the plaintiff that a fee patent to the lands hereinbefore described would soon be issued to the plaintiff. That as soon as said fee patent was issued to the plaintiff the plaintiff would be required to pay immediately to the United States government the sum of $7,000 for a permanent water right for said lands, and that if said sum of $7,000 was not paid immediately for said water right that the lands would be sold by the United States government to pay for said water right and taxes, and that the plaintiff would get very little, if anything at all, out of said lands, if said lands were so sold for the water right and taxes. That said defendant Reese B. Brown further told and represented to plaintiff that he was the only person who would buy said lands, except at a government sale, and that if the property was sold by the government the plaintiff would not receive to exceed $4,000 therefor, and that such sum as the plaintiff did receive would only be paid to her in small installments extending over a number of years. That said defendant Reese B. Brown further told plaintiff, for the purposes aforesaid, that if the plaintiff did not sell the lands to him and sign a deed therefor he would buy said lands of the United States government at the government sale, and that he could purchase said lands from the United States government at government sale for $4,000. That said defendant Reese B. Brown further told the plaintiff, for the purposes aforesaid, that the reason the government was going to issue a fee patent to plaintiff was so they could immediately sell the said lands and retain from the sale thereof $7,000 for the water right, and that if she did not sell and convey her lands to him that this plaintiff would lose all of her rights to said lands and would receive nothing therefor. That the said defendant Reese B. Brown further told the plaintiff, for the purposes aforesaid, that he was going away that night to South America, and that unless the plaintiff so sold and signed a deed to said lands conveying them to said defendant immediately that the sale could not be made at all and that the plaintiff would lose the said lands. That the said defendant Reese B. Brown also informed the plaintiff, for the purposes aforesaid, that the plaintiff's brother, Phillip Purns, and other Indians, had sold their lands to him at prices ranging from $4,000 for 40 acres to $8,000 for 80 acres, but that said lands so sold by said Indians to said defendant were worth twice as much as the lands of the plaintiff. That the said defendant Reese B. Brown also told the plaintiff, for the purposes aforesaid, that the reason why the lands upon the Tieton Project and in the Naches Valley were being sold as high as $14,000 to $16,000 was because the permanent water rights upon said lands were all paid, and that no lands similar to the plaintiff's were being sold for more than $7,000 where the water rights were not paid for. That in said conversation at said time the said defendant Reese B. Brown, for the purposes aforesaid, frequently referred to plaintiff's brother, Phillip Purns, to corroborate his said statements, and his said statements were corroborated by the plaintiff's brother, Phillip Purns, at all such times.'

In the succeeding paragraph of the complaint the truth of the representations are negatived by appropriate allegations, and it is further alleged therein:

'That the defendant Reese B. Brown wrongfully, fraudulently, and maliciously procured the assistance of plaintiff's brother, Phillip Purns, to aid him in securing a deed of conveyance of said lands from plaintiff, and to confirm his unture, false, and fraudulent statements and misrepresentations, by paying to plaintiff's brother the sum of $500, all of which was unknown to the plaintiff at said time, but has since come to the knowledge of the plaintiff.'

It is further alleged:

'That the plaintiff's husband had left debts and funeral expenses amounting to approximately $1,300. That plaintiff had no means with which to pay said debts and expenses, and had no means for paying immediately the permanent water right upon said land. That she was very weak in mind and body, and very much distressed at said time, and especially by the representations and statements made by the said Reese B. Brown in the presence

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