Trigg v. Trigg.

• Citation: 37 N.M. 296,22 P.2d 119
• Decision Date: 20 April 1933
• Docket Number: No. 3735.,3735.
• Parties: TRIGGv.TRIGG.
• Court: New Mexico Supreme Court

37 N.M. 296

22 P.2d 119

TRIGG

v.TRIGG.

No. 3735.

Supreme Court of New Mexico.

April 20, 1933.Rehearing Denied June 2, 1933.

Appeal from District Court, San Miguel County; Armijo, Judge.

Suit by Ross Trigg against Eloise McFarland Trigg. From judgment for plaintiff, defendant appeals.

Affirmed.

Husband or wife may convey land directly to the other without joinder of the one to whom land is conveyed Comp.St.1929, § 68-403.

Reid & Iden, of Albuquerque, for appellant.

Chas. W. G. Ward, of East Las Vegas, for appellee.

ZINN, Justice.

Appellee, plaintiff below, brought suit against appellant, defendant below, to cancel deeds of conveyance made on August 27, 1927, executed by the appellee and appellant to one J. H. Barwise, an attorney, for a stated consideration of $1, which deed of conveyance transferred the property in question, consisting of a large ranch located in San Miguel county, to the said J. H. Barwise, who then and at the same time conveyed the property to the appellant by a deed of conveyance for a stated consideration of $1. The deeds were in the usual warranty deed form. The primary and admitted purpose of this transfer of the property from the appellee to appellant, through J. H. Barwise, was to place the property in dispute in the name of the appellant, the wife of the appellee.

The allegations of the complaint material to the issue are that the appellee and appellant are husband and wife, and that the appellee was the owner of a large ranch in San Miguel county, N. M., which was of the community property of appellee and appellant; that the appellant threatened the appellee to abandon his bed and board unless he did convey this ranch property to her, and that on August 27, 1927, worried by the constant importunities and “nagging” of the appellant, and relying upon the agreement of the appellant that the property would remain community property, appellee executed a deed of conveyance vesting title to the property in appellant, but intending the same to remain the community property of the appellee and appellant, and that subsequent to the conveyance the appellant did abandon and desert the appellee, refusing to live with him as his wife; the complaint alleges that it was the deliberate purpose of the appellant to defraud the appellee by inducing him to convey the property to her and thereafter to desert and abandon him. The appellant contended that the conveyance of the property was a gift, in lieu of a home, and as the donee of such gift she was the sole owner of said property.

The case was tried before the district court of San Miguel county, where the issues were found for the appellee, and the court ordered that the deed from appellee and appellant to J. H. Barwise and the deed from J. H. Barwise to the appellant be canceled, and the property was held to be community property of the appellee and appellant, from which judgment and decree the issue is here on appeal.

[1] It appears from the record that the means adopted by J. H. Barwise, a reputable and respected member of the bar of the state of Texas, in having the appellant and appellee join in a deed of conveyance to him of the property in question, and thereafter by deed from him to appellant, conveying the property to her, was a method employed and intended to obviate the common-law disability of husband and wife to convey to each other directly. The common-law disability of husband and wife to convey, the one to the other, has, however, been expressly removed by statute in this state, and the husband may convey real estate directly to the wife and the wife directly to the husband without the other joining in the conveyance. 1929 Comp. St. § 68-403. That the circuitous transfer of the property in question in this case through J. H. Barwise was intended to effect a transfer from the appellee to the appellant is admitted by all parties, and the legal effect of the method employed in conveying the property need not be considered, though ably briefed by counsel for appellee. The evident purpose and legal effect was to transfer the community interest of the appellee to the appellant.

The sole question is whether or not the court below erred in concluding as a matter of fact and law that the actions of the appellant in pursuading the appellee to have the land in question placed in her name, and thereafter abandoning appellee, nullified and vitiated the deed, and the appellant's counsel in their brief admit that the issue in this case being merely whether the deed made by the appellee to appellant was made by him under duress of fear of abandonment, and whether the appellant induced the appellee to make the deed fraudulently, with the intention of abandoning the appellee later. Able counsel for appellant claim that the deeds are absolutely controlling in this case, unless they are vitiated by fraud upon the part of the appellant as against the appellee, or unless the appellee executed said deeds under duress by reason of the threat of abandonment.

By statute in New Mexico, 1929 Comp. St. § 68-401, it is provided that, where real estate is conveyed to a married woman, the presumption is that title is thereby vested as her separate property. However, 1929 Comp. St. § 68-201, provides that either husband or wife may enter into any engagement or transaction with the other, or with any other person respecting property which either might, if unmarried; subject, in transactions between themselves, to the general rules of common law which control the actions of persons occupying confidential relations with each other.

An examination of the rules of the common law which control the actions of persons occupying confidential relations with each other as applicable to the case at bar, where the transaction is between husband and wife, we find the rule stated in Thompson on Real Property, as follows: “In equity an inquiry will be made into the motives, consideration, and objects to be accomplished by such conveyance. If the conveyance is from the wife to the husband, there may be a presumption against its validity on account of the confidential relation of husband and wife, and the supposed dominant influence of the husband; but this presumption is overcome by proof that the wife received adequate consideration; that the conveyance was to her advantage, and was not obtained by duress or undue influence. When, however, the conveyance is from a husband to his wife, there is a presumption that it was intended for the wife's support, and is valid in equity, unless it was made in violation of the rights of creditors. While neither equity nor law denies the possibility of valid conveyances between husband and wife, yet whenever one of the parties obtains a possible benefit thereby, equity raises a presumption against its validity, and casts upon the one asserting it the burden of proving affirmatively his compliance with the equitable requisites in order to overcome the presumption.” Thompson on Real Property, vol. 3, § 2823.

[2][3] That conveyances and other instruments may be set aside because procured by the exercise of undue influence upon the party executing them is not questioned, and the exercise of such undue influence does not necessarily mean the infliction or threat of any physical injury or mischief. In the general sense of the term, undue influence would seem to be a species of duress, or, if this be not quite accurate, the two would at least seem to run together so that the precise line where one begins and the other stops is not easily definable.

Thompson on Real Property says: “Relief may sometimes be had in equity against threats which do not amount to legal duress. Such relief may be granted when a deed has been fraudulently procured through the fears, affections, or sensibilities of the grantor excited by threats; as, for instance, where the grantor has made a conveyance in consequence of threats of a criminal prosecution of his brother. Equity will grant relief in such cases, though there would be no remedy at law. Cases of this kind, however, more properly come under the description of cases of undue influence, from which cases of duress are sometimes hardly to be distinguished. When the coercion is only a social or domestic force, and not a menace to life or limb or of imprisonment, it more properly comes under the designation of undue influence.” Thompson on Real Property, vol. 3, § 2866.

A clear example of the application of the above rule is in an Indiana case, where the court said: “The threat of a husband to abandon his wife if she does not execute a mortgage on her separate real estate to secure his debt is an improper pressure; and a mortgage executed by a wife, under such a threat, may be avoided by her, if the threat induced the execution of the mortgage.” Line, Administratrix, v. Blizzard et ux., 70 Ind. 23, at page 25.

Thompson on Real Property says: “The relation of husband and wife, though confidential, does not of itself warrant a presumption of undue influence. Such a presumption arises only when there is something suspicious in the circumstances, or the nature or magnitude of the gift is such that it ought not to have been made and accepted.” Thompson on Real Property, vol. 3, § 2889.

Our court, speaking through Justice Bratton, has quoted with approval from Pomeroy's Equity Jurisprudence the equitable doctrine concerning undue influence, and states under what circumstances or transactions duress or undue influence may be inferred as the result of moral, social, or domestic force exerted upon a party so as to control the free action of his will, and when equity will extend relief, or a chancellor may be induced to set aside a conveyance of property made under such improper influences.

“Where there is no coercion amounting to duress, but a transaction is the result of a moral, social, or domestic force exerted upon a party, controlling the free action of his will, and preventing any true consent,...