Massey v. Rae
| Decision Date | 06 April 1909 |
| Citation | 121 N.W. 75,18 N.D. 409 |
| Parties | MELVINA MASSEY v. H. C. RAE |
| Court | North Dakota Supreme Court |
Rehearing denied May 15, 1909.
Appeal from District Court, Cass county; Pollock, J.
Action by Melvina Massey against H. C. Rae. Judgment for defendant and plaintiff appeals.
Reversed and remanded.
Judgment reversed, a new trial granted, and case remanded.
Glassford & Lacy and M. A. Hildreth, for appellant.
A deed obtained by persons in such relations to the grantor as to give them a controlling or strong influence over his conduct will be set aside upon slight evidence of improper exercise thereof. Casborne v. Barshan, 2 Beaver, 76; Hill on Trustees 156-157-158-159-162; Demp v. Bennett 7 Simons, 539; Story's Equity Jurisprudence, 308-324; Wood v. Downes, 18 Ves. 120; Kleeman v. Peltzer, 22 N.W. 793.
The burden of proof is upon him taking a gift from one in confidential relations to show the transaction fair and proper. Sear v. Shafter, 6 N.Y. 268; Houghton v Houghton, 15 Beaver, 278; Ford v. Harrington, 16 N.Y. 285; Davies v. Davies, Second New Rep. 284; Coutts v. Acworth, Law Rep. 8 Eq., 558-567; Burnaby v. Griffin 3 Ves. 266.
Barnett & Richardson, for respondent.
In view of the statutes granting to married women power to convey, no greater burden in the absence of undue influence, rests upon the husband, as to conveyances from the wife than from others. Tillaux v. Tillaux, 47 P. 691; Sheehan v. Sullivan, 58 P. 543; Nedby v. Nedby 21, Law J. Ch. 446-5; De. Cox. & S. 377, followed--Barron v. Willis, 68 Law J. Ch. 104 (1899)--2 ch. 578, 81 Law T. (N. S.) 321--48 Wkly Rep. 26.
This is an action to set aside a deed to a part of lot 1, block 12, of Keeney & Devitt's addition to the city of Fargo. The complaint states as the basis on which such relief is asked the following facts: That defendant had been acting as the plaintiff's agent in attending to the removal through legal proceedings of a tenant of the plaintiff from a building situated on a lot adjoining the plaintiff's residence. That the defendant had as such agent served or caused to be served upon such tenant a notice to quit some time previous to May 14, 1906, and that it was necessary to serve another notice, and that defendant did on May 14, 1906, fraudulently procure the plaintiff to sign a deed of the said property and deliver the same to him through false representations that the paper was a notice to quite to be served upon her tenant to vacate said building. That she signed said deed believing it was a notice to quit, and that she was at the time "in such a condition of illness of body and mind that she had no means and did not know that the instrument she was signing was the deed above set forth, and that she had no knowledge as to her making and delivering said deed until some two or three weeks thereafter, when she was informed that she had deeded the said property to the defendant herein. The complaint also states that no consideration was paid to her for said deed. The answer is a qualified denial, and further alleges affirmatively that the plaintiff is defendant's wife, and that the conveyance was executed and delivered for a valuable consideration, and that the defendant has ever since said conveyance been in the actual and open possession of the same, and is now the absolute owner thereof. At the close of the plaintiff's case, the trial court granted defendant's motion to dismiss the action, and made findings of fact as follows: That plaintiff and defendant have been husband and wife during the 15 years last past, and have resided in the city of Fargo during that time. That on May 15, 1906, plaintiff, for a valuable consideration, executed and delivered to defendant a quitclaim deed of the premises described, and that said deed was executed freely and voluntarily with full knowledge of the execution and delivery of the same. Judgment was duly entered on these findings, and the action was dismissed. Plaintiff appeals from the judgment and demands a review of the entire evidence under section 7229, Rev. Codes 1905. The record presents a difficult question of fact for determination. The defendant was not a witness at the trial. Hence just what facts he would testify to to substantiate his answer we do not know. He relies solely upon the insufficiency of the plaintiff's evidence to substantiate the cause of action set forth in the complaint. This he had a right to do if the evidence is actually insufficient to show any cause of action in favor of the plaintiff against the defendant.
We will not review the evidence at any great length, but will state enough thereof to indicate the basis of our conclusion that a new trial must be had. In the first place, the evidence of the plaintiff shows to our satisfaction that the defendant paid no consideration for the deed, nor did the plaintiff receive any therefor. The plaintiff was asked the following questions: The defendant's counsel urge that plaintiff received the proceeds of a mortgage placed on the lot by the defendant about one month after the deed was delivered. The evidence fails to show this fact. An inference of such fact might possibly be drawn from the evidence. This evidence shows that the plaintiff was in need of $ 1,600, and that a mortgage of $ 800 was placed on the property in suit by the defendant, and a mortgage for $ 800 was placed on the balance of the lot by the plaintiff. But there is no positive showing that the plaintiff received all of this money, and we do not think that the fact of consideration in a case of this kind should be allowed to rest in inference. The lot in suit is valued at from $ 3,000 to $ 4,000, and, if the plaintiff received $ 800 from the defendant a month after the deed in suit was given, it is far from showing that the $ 800 was a consideration for the deed. During the time that these mortgages were being negotiated the plaintiff was all the time endeavoring to procure a reconveyance to her of the property.
So far as the fraudulent representations alleged in the complaint as a basis for setting aside the deed are concerned, it is conceded that no such representations are expressly shown by the evidence. On the trial the plaintiff asked leave to amend the complaint by striking out all allegations therein as to fraudulent representations, and inserting in lieu thereof allegations to the effect that the deed was signed through mistake caused by sickness, and through what had theretofore transpired as to giving notice to quit to her tenant, and that, on account of such facts, she believed she was signing a notice to quit. The motion to amend the complaint was objected to by the defendant on the ground that the issues would be thereby entirely changed. The court refused to allow the amendment, and granted the motion to dismiss the action which had been theretofore made. In view of this record, it is apparent that the question of actual fraudulent representations inducing the execution of the deed must be eliminated in considering the evidence. The deed was signed in the presence of three persons besides the defendant. The plaintiff makes no attempt to show any actual fraudulent representations, but relies upon a claim of mistake as to what she thought she was signing, which was, as she alleges brought about by what had transpired before in regard to serving notices to quit and by her sickness. All the witnesses fully corroborated her testimony to the effect that she was very sick. They all testify that she had to be propped up or held up in bed to sign the deed and the notice. The deputy sheriff who was present to receive the notice to quit for service stated to the notary public who took the acknowledgment as they were leaving the room "that she was pretty sick, and I don't believe she will live long, and I don't think she was understanding what she was doing." A nurse who had attended the plaintiff two or three weeks testified that: "On May 15th she was very ill--she was what I considered in a dying condition, just between life and death." The notary public testified that he realized that she was sick, although he did not know how sick she was, and that he asked her, "Do you know what you are signing?" and that he would not have taken her acknowledgment unless he had asked her that question inasmuch as she had been sick, and that he asked her that question because she was quite sick. This testimony, taken in connection with plaintif...
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