Martinez v. Martinez

• Court: Colorado Supreme Court
• Writing for the Court: [57 Colo. 293] GARRIGUES, J.
• Citation: Martinez v. Martinez, 57 Colo. 292, 141 P. 469 (Colo. 1914)
• Decision Date: 01 June 1914
• Docket Number: 7457.
• Parties: MARTINEZ v. MARTINEZ.

141 P. 469

57 Colo. 292

MARTINEZ v. MARTINEZ.

No. 7457.

Supreme Court of Colorado

June 1, 1914

Appeal from Costilla County Court; J. W. McLellan, Judge.

Action by Terecita Martinez against Francisco Martinez. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Albert L. Moses, of Alamosa, for appellant.

F. B Webster, of San Luis, for appellee.

GARRIGUES, J.

The object of this suit is to set aside a deed and cancel a contract. Plaintiff below in her complaint alleges: That she is old, infirm, and wholly unable to read, write, speak, or understand the English language, ignorant as to business matters, and unable to understand written instruments. That on October 7, 1908, she owned and possessed a small tract of land upon which she resided with defendant, who was her nephew. That, with intent to cheat and defraud her, he wrongfully took advantage of their relationship and fraudulently persuaded her to execute and deliver to him a quitclaim deed of the premises, reserving therein the following life interest to herself:

'Party of the first part hereby reserves a life interest in the property hereby conveyed, also all rents and profits derived from said property during the term of her natural life.'

That no consideration was paid for the conveyance; but defendant promised plaintiff at the time that, if she would deed him the property he would keep, maintain, clothe, care for, and treat her with kindness and consideration during the remainder of her life. That from the date of making the deed he has wholly failed, neglected, and refused to fulfill his promises, ejected her from the property, treated her cruelly and unjustly, and she has been obliged to support, maintain and clothe herself with the aid and assistance of others, and that defendant has contributed nothing whatever thereto.

The second cause of action states that defendant with intent to cheat, wrong, and defraud her, took advantage of her age and their relationship and induced her to enter into an agreement in writing whereby, in consideration of maintenance, she gave him the use of the tract of land and a span of work horses during the remainder of her life; that she has kept all the conditions of the contract, but defendant has wholly failed neglected, and refused to keep the conditions on his part to be performed, and since the date of its execution she has been obliged to, and has with the aid and assistance of others, cared for herself, and he has contributed nothing whatever thereto, wrongfully ousted her from the premises, and continues forcibly to hold possession thereof. She prays to have the deed set aside and the contract canceled.

The answer admits the execution of the instruments, and alleges that the plaintiff resided with and was cared for by him and his wife from July 17, 1908, until March 16, 1909, when she voluntarily went away to visit her brother-in-law, Ramon Lucero; that about April 10, 1909, she returned and took away the span of horses and all her personal effects; that defendant has always been ready and willing to carry out the agreement and give her a home free with him; that, when she deeded that property to him, the premises were not worth over $200, to which he added valuable improvements; denies that the deed was unfairly obtained, and alleges that it was first proposed by plaintiff herself, and made without his solicitation. On plaintiff's motion, the following was stricken from the answer:

'That at no time prior to the said 16th day of March, A. D. 1909, had the plaintiff made any complaint about the treatment received by her from the defendant or his wife, and neither the plaintiff nor defendant had contended, nor had there been ground for such contention, that the other had not faithfully kept and performed the terms and conditions set forth and agreed to in the written agreement set out in the third paragraph of the second cause of action in plaintiff's complaint. That, after remaining at the home of her brother-in-law, the said Ramon Lucero, for about three weeks, the plaintiff for the first time complained that the defendant had not complied with the terms of the said written agreement. * * * That the defendant is informed and believes, and so upon information and belief alleges, the fact to be that the plaintiff would never have been or become dissatisfied with the treatment she received from the defendant but for the meddlesome interference of relatives who hoped to become possessed of the land in question, and who were chagrined and disappointed when they learned that she had conveyed it to the defendant herein, and would not have brought either the first or second suit against the defendant except at the instigation of these same persons, * * * and that she was well and fully advised of her rights and the effect of making the said deed by a regularly licensed attorney at law who has had many years' practice at the bar, and was, at the time of making the said deed, deputy county clerk of the county of Costilla, and is at this time her attorney in this case, and that, in addition to the counsel and advice of the said lawyer, she had the counsel, advice, and assistance of Hon. J. M. Olguin, county treasurer of Costilla county, who speaks both his native language and the native language of the plaintiff, Spanish or Mexican, and English fluently, and reads and writes both languages with ease and accuracy.'

2. There is some conflict in the evidence; but we think its preponderance fairly shows that plaintiff, who was over 60 years of age prior to July 17, 1908, lived alone on a small farm which she owned. In June of that year, while defendant was working in Wyoming, plaintiff inquired about him of her cousin Abundo Martinez, saying she was waiting for him to return; that she wanted to deed him the place and make him her heir the same as though he were her son. July 17th defendant and his wife moved into the house of plaintiff at her request, where they lived together as one family until March 16, 1909, defendant's wife doing the cooking. It appears a cloud-burst had almost destroyed the farm by washing away the soil, and defendant spent several months in making repairs. October 7, 1908, they all went to town, and while there plaintiff executed the instruments which were previously prepared for her at her request, and under her instructions. While in town she went with defendant to the store of Gallegos, to whom she explained the whole transaction, and defendant at that time arranged with the merchant to allow her to have whatever she wanted and charge it to him, and under this arrangement she procured what articles she desired that day. The parties continued to live together with no particular trouble until about Christmas, when plaintiff gave one of the horses to Antonio Vigil, who took it away. Defendant went after and recovered this horse from...