Tage v. Alberts

• Decision Date: 07 February 1887
• Citation: 13 P. 19,2 Idaho 271
• Parties: TAGE, ADMINISTRATOR, v. ALBERTS
• Court: Idaho Supreme Court

13 P. 19

2 Idaho 271

TAGE, ADMINISTRATOR, v. ALBERTS

Supreme Court of Idaho

February 7, 1887

PRACTICE-FINDINGS OF COURT.-If in an action of fraud the findings of the court are sufficient to sustain the judgment, the fact that the court fails to find upon certain allegations in the complaint which, if found true or not true, would not affect the result, is no cause for a new trial.

SAME.-In such actions findings showing the situation of the parties and the circumstances under which the alleged fraud was committed are responsive to the issues, and not objectionable as being outside thereof.

APPEAL from District Court, Ada County.

Affirmed.

Brumback & Lamb, for Appellant.

A judgment based upon findings which do not determine all the issues is a decision against law. (Knight v. Roche, 56 Cal. 17; Brady v. Bartlett, 56 Cal. 364; Billings v. Everett, 52 Cal. 661.) Where specific facts are put in issue, it is the duty of the court to find the facts specifically. (Hihn v. Peck, 30 Cal. 286; Pratalongo v. Larco, 47 Cal. 382; Breeze v Doyle, 19 Cal. 104; Hidden v. Jordan, 28 Cal 301; Jones v. Block, 30 Cal. 228; Polhemus v Carpenter, 42 Cal. 386.) The specific facts constituting a fraud must be pleaded. (Estep v. Armstrong, 69 Cal. 536, 11 P. 132; Green v. Hayes, 70 Cal. 276, 11 P. 716; United States v. Atherton, 102 U.S. 372; Misner v. Knapp, 13 Or. 135, 57 Am. Rep. 6, 9 P. 65.) The cause of action established by the findings must be the cause of action set out in the complaint; otherwise, judgment will be reversed. (Mondran v. Goux, 51 Cal. 152; Green v. Chandler, 54 Cal. 626.) The findings must cover every material issue raised by pleadings. (Cummings v. Peters, 56 Cal. 593; Everson v. Mayhew, 57 Cal. 144; Packard v. Johnson, 57 Cal. 182, 183; Robinson v. Railroad Co., 57 Cal. 419.)

Huston & Gray, for Respondent.

One who deals in property matters with an aged and feeble person is bound to prove the fairness of the transaction. (Bigelow on Frauds, 282; Wartemberg v. Spiegel, 31 Mich. 400; Ellis v. Mathews, 19 Tex. 390, 70 Am. Dec. 353.) Equity will set aside a contract for the sale of real estate and a conveyance thereunder when it appears that the capacity for business on the part of the grantor has been greatly weakened by trouble and distress of mind, and the price was grossly inadequate. (Bigelow on Frauds, 282; Perkins v. Scott, 23 Iowa 237.) Where inadequacy of consideration or undue influence is joined to imbecility or weakness of mind, arising from old age, sickness, intemperance, or other cause, equity will set aside the transaction at the suit of the injured party. (Bigelow on Frauds, 283 et seq., and notes; Tracy v. Sacket, 1 Ohio St. 54, 59 Am. Dec. 610; Crawford v. Hoeft, 58 Mich. 1, 23 N.W. 27, 24 N.W. 645, 25 N.W. 567, and 26 N.W. 870; Cooley on Torts, 515, 516; Oakey v. Ritchie, 69 Iowa 69, 28 N.W. 448; In re Disbrow's Estate, 58 Mich. 96, 24 N.W. 624, and note.) Evidence that parties lived together in adulterous intercourse is pertinent as one of several facts to prove the prevalence of undue influence. (Bigelow on Frauds, 500, 501 et seq.; Cooley on Torts, 515.)

BUCK, J. Hays, C. J., and Broderick, J., concur.

OPINION

BUCK, J.

This action was brought to set aside a deed from plaintiff to defendant, on the ground that it was procured by fraud. Decree was granted, setting aside the deed, and from the decree and order denying a new trial appeal is taken. The appellant specifies three errors upon which he relies: 1. That the court erred in excluding evidence offered by the defendant that he had furnished the money that purchased the property conveyed by the deed. The record shows that the offer was to show that defendant had given money to plaintiff, from time to time, which was used by her in the purchase of property. He did not offer to show that he had loaned or furnished her money with the understanding that it was to be used to purchase the property. She had a right to use her own money as she chose, whether she received it from the defendant or others. We think the evidence clearly incompetent. 2. Appellant claims that the evidence was insufficient to support the sixth, seventh, ninth, tenth, eleventh, thirteenth, and fourteenth findings of fact. Upon an examination of the testimony we find evidence upon the subject matter of each of these findings. Some of it is undisputed, and where there is a conflict we think the credibility of the witnesses a matter for the trial judge, and we see no ground for disturbing the decision of the court thereon. 3. That some of the findings are outside of the issues, and that those actually found do not cover the issues raised by the pleadings. This objection suggests the question, What are the material issues in the case? The citation from 1 Daniell's Chancery Practice, in appellant's brief, states that, in actions of fraud, "everything intended to be proved should be stated, otherwise evidence cannot be admitted to prove it." (1 Daniell's Chancery Practice, 335.) Accepting this as correct, yet it does not follow that everything alleged in a pleading will be proven upon the trial, or that every allegation must be sustained by evidence before fraud can be established. (Bigelow on Frauds, 490, 493.) The gravamen of plaintiff's alleged cause of action is that "on the twenty-seventh day of May, 1884, defendant, fraudulently taking advantage of plaintiff's incapacity resulting from sickness and disease, caused her to execute a certain deed, whereby she conveyed to him certain real estate." The charging part of the complaint is as follows: "That the plaintiff being then sick, weak, and enfeebled from disease and prolonged sickness and confinement, and believing she had but a short time to live, and plaintiff being an illiterate person, and unable to read or write, the defendant on that day, fraudulently taking advantage of the plaintiff's said incapacity, procured her to sign a certain writing, without paying her any consideration therefor, and which writing he falsely and fraudulently represented to be a will of the plaintiff, and purporting to devise her property as she had theretofore directed." In the decision of the court there is no finding upon the allegation that defendant fraudulently represented to plaintiff that said deed was a will. The failure to find upon this allegation is assigned and insisted upon as error.

In Schroeder v. Jahns, 27 Cal. 274, the court says "While agreeing with counsel that the court must find as to the truth of every issue of fact found in the case, we think the finding need not be directly and pointedly made that each of the several allegations of the complaint or answer is not true. But if the court finds such facts as will be sufficient . . . . to necessarily determine every material issue in the cause, the requirement of...