Roman v. Albert

• Decision Date: 30 January 1928
• Docket Number: 6232.
• Citation: 264 P. 115,81 Mont. 393
• Parties: ROMAN v. ALBERT et al.
• Court: Montana Supreme Court

264 P. 115

81 Mont. 393

ROMAN v. ALBERT et al.

No. 6232.

Supreme Court of Montana

January 30, 1928

Appeal from District Court, Carbon County; George Bourquin, Judge.

Action by Liberty Roman against John Albert and others, in which defendantSadie Mae Puutio filed a cross-complaint.Judgment for defendant Puutio on her cross-complaint and dismissing the complaint, and plaintiff appeals.Affirmed.

Myers J., dissenting in part.

Cannon & McKevitt, of Spokane, Wash., and Johnston, Coleman & Johnston, of Billings, for appellant.

John G Skinner, of Red Lodge, and George S. Smith, of Billings, for respondents.

MATTHEWS J.

On July 31, 1926, the plaintiff, Liberty Roman, commenced action in the district court of Carbon county for the reformation of a certain deed and to quiet title to the real estate described in it and two other deeds; she named as defendantsSteve Roman, her husband, John Albert, sheriff of the county, and Sadie Mae Puutio.Roman defaulted and thereafter appeared in the case only as a witness for the plaintiff.

Albert and Puutio joined issue as to the facts alleged in the complaint, and the latter filed a cross-complaint in which she attacked the deeds as fraudulent and set up a lien on the property described in the deeds by judgment against Steve Roman.Plaintiff, by reply, denied the allegations of the cross-complaint.

Being an equity case, the cause was tried to the court without a jury, and in due time the court made elaborate findings on all of the facts, and general findings to the effect that all of the allegations of the complaint were untrue and all of the allegations of the cross-complaint were true.On the findings the court entered appropriate conclusions of law and entered judgment dismissing the complaint and awarding Puutio the relief for which she prayed in her cross-complaint.

Plaintiff has appealed from the judgment and has assigned error on each of the findings made and on the action of the court in refusing to adopt the proposed findings tendered by her, which assignments, however, taken as a whole, raise but the question of the sufficiency of the evidence to support the findings and judgment of the court.

The facts, as disclosed by the record, are substantially as follows: Steve and Liberty Roman were married in New York in 1895 immediately after their joint arrival from the Swiss Tyrol.For two years Steve worked in a brewery; the couple then, with their first child, Veronica, moved to Utah, where Steve worked in a coal mine for one year, and they then came to Red Lodge, where they have since resided; here Steve worked in the coal mines for a number of years and then ran a saloon for some time and then changed to the wholesale liquor business.On the outlawry of his business, the saloon building was converted into a moving picture theater and considerable money was expended in improvements in 1917.Up to 1923 Liberty Roman conducted a rooming and boarding house over the theater.During these latter years the family consisted of the parents, two sons, and three or more daughters.The family was thrifty and the children all received a fair education; the older son was graduated as a lawyer and went to a sister state.Steve Roman, the second son, John, and the girls ran the picture show, known as the "Roman Theater"; none of the family received a wage for services, but their receipts from all sources were deposited in bank in the the name of Steve Roman; as aptly put by Veronica, there was but "one pocket in the whole family."Property was accumulated, and, up to April 5, 1926, there stood of record in Carbon county, in the name of Steve Roman, a lot on which stood the family residence, a lot on which stood a restaurant building, and two and a fraction lots on which stood the Roman Theater.

In 1925 the family bitterly resented an intimacy which had grown up between the son, John, then 20 years old, and the defendantSadie Mae Puutio, which culminated in the arrest of Miss Puutio at the instance of Steve Roman upon highly libelous charges.On dismissal of the complaint against her, Miss Puutio instituted an action against Steve Roman for malicious prosecution.A trial was had, resulting in an instructed verdict and judgment in favor of the defendant, but on appeal this judgment was reversed and the cause remanded for a new trial.Puutio v. Roman,76 Mont. 105, 245 P. 523.

Knowledge of the reversal came to the Roman family on April 3, 1926, and, two days later, they placed of record three deeds, dated April 26, 1920, two of which bore the acknowledgment of Steve Roman as of that date and the third as of April 29, 1926.The first and second conveyed to Liberty Roman the residence property and the restaurant property, while the third described but one lot of the two and a fraction on which stood the theater building.On April 5, 1926, Steve Roman gave Veronica a bill of sale to his automobile and had the bank account transferred from his name to that of the "Roman Theater."

The remittitur from this court was received on April 16, and thereupon judgment was entered in favor of Sadie Mae Puutio and against Steve Roman for costs amounting to $495.50 and execution issued thereon and was levied upon that portion of the theater property not described in the deeds mentioned above.On May 3Steve Roman executed a correction deed conveying all of the theater property to his wife, which deed was placed of record, and thus Steve Roman was divested of the last vestige of property and rendered insolvent.

A second trial of the malicious prosecution case was had on June 3, 1926, and this trial resulted in a final judgment in favor of Miss Puutio in the sum of $6,000 and costs.An appeal was taken, but no stay was effected, and execution was thereupon issued and levied upon all of the property described in the several deeds from Steve Roman to plaintiff.Thereupon plaintiff commenced this action.

The testimony by which plaintiff sought to establish the allegations of her complaint and to defeat the claim of defendant Puutio is substantially as follows: The plaintiff testified that she came to this country and was married at the age of 18 years, and that, for eight years prior thereto, she had peddled clothing, glassware, and telescopes in Basel, Switzerland, living away from home and paying her own expenses; that she made approximately $8,000, part of which she sent home and part of which she kept, so that, on embarking for New York, she had the equivalent of $3,400, of which she had $3,000 left on arriving in New York.This $3,000 she kept until the family went to Utah, spending about $500 on the trip and thereafter purchasing a house in Utah.What the house cost or what was done with it we are not informed.She then testified that she had over $3,000 left when the family came to Red Lodge, stating: "I kept boarders and the man worked in the mine."This money, she says, she gave to Steve to invest, and counsel contend that this was the nucleus from which Steve built up his holdings valued at more than $40,000, although the property was not acquired until long after the family came to Red Lodge, nor until after Steve had worked steadily for years.

Plaintiff further testified that in 1907she received $4,000 from the estate of her father in payment for what she had given the family while peddling, and this, she asserts, was used in remodeling the theater in 1917.The dwelling house was remodeled in 1923, and again she says that the money employed was hers, and again speaks of the money earned by peddling.

In 1920 the family were not in full accord, and Steve went to Utah, where he remained for more than a month.In his absence plaintiff sold a house and sent the deed to him for execution.She claims that she did not know that the property was in his name until, while he was absent, she discovered that he had given two notes to the bank and spent the money for liquor and had given checks to saloons or bootleggers, and that, on his return and for the purpose of preventing further waste of funds for liquor, she compelled Steve to deed the property to her.How the making of secret deeds could accomplish this purpose while the bank account remained in Steve's name does not appear.

The attorney who drew the deeds testified by deposition.His testimony is to the effect that the deeds were executed before Steve went to Utah and that Steve told him he wanted to deed the property to his wife because so much of her money had gone into it and he was going away; he further testified that, on complaint of members of the family that Steve was drinking and gambling, he had gotten Steve up to his office and talked with him just before making the deeds and that thereafter Steve left home and was gone for several months.He disclosed that he had received telegrams and letters from the Roman family before making his deposition, but refused to produce them and make them part of the deposition.

As to delivery, plaintiff testified that Steve came home from the law office on April 26, 1920, and handed her the three deeds, saying, "Here is the deed, put it away."In this Steve and three of the daughters corroborate her, while three neighbors testified that in 1920plaintiff showed them certain papers and told them that Steve had turned all of the property over to her.Two of these witnesses testified that they merely saw papers in her hand, while the third stated that he read the deeds, but, on being asked, through an interpreter, to read them in court, stated that he could not read English.Plaintiff testified that she never read the deeds and did not know that a part of the property had been omitted until the sheriff served the writ of execution upon her in April, 1926.

On cross-examination the plaintiff...