Tanforan v. Tanforan

Plaintiff sued, seeking a judgment canceling a deed which she had made to her former husband, and compelling a reconveyance to herself of the property so deeded. Her complaint charged in two counts. In both it is declared that the property so conveyed was her separate property owned by her in fee, subject to a life estate in her mother. This by the pleadings is admitted. In the first count she charged that differences having arisen between herself and her husband they had agreed to a separation, and had further agreed that the defendant would pay to the plaintiff upon such separation the sum of one thousand dollars, and for this sum the plaintiff would execute to her husband her deed conveying to him all of her right, title, and interest in and to the community property. The husband, the defendant herein, caused the articles of separation and the deed to be drawn, and they were presented to her in a notary’s office for execution. Plaintiff said to the defendant that she was too sick to read the documents and asked the defendant to state what the deed contained. The defendant then falsely and fraudulently represented to her that the deed was a deed to the community property which she was to execute in accordance with the understanding of the parties. Believing this, she did so execute the deed, and thereafter discovered that the deed was not a deed to the community property, but was a deed to all her separate property. These false representations she relates were made upon the 18th of February, 1909—the date of her execution of the deed. In her second count she sets up that the husband compelled her to execute this deed of her separate property under duress, on that day and for several days prior thereto threatening “to kill and murder plaintiff unless plaintiff would execute and deliver to defendant a deed granting and conveying to the defendant all her right, title, interest and estate in and to” her separate property, and she alleges that she was impelled to execute and did execute this deed under her fears caused by these threats of her husband.

All these matters were denied by the husband, whose answer and whose evidence were that shortly prior to the 18th of February he discovered that his wife was unfaithful. They had one child—a daughter. They agreed to separate. The wife’s estate in her separate property was not an estate in enjoyment, and consequently the wife was receiving no im

Having. thus outlined the husband’s defense, we may in similar manner set forth the testimony of the wife. She states that shortly before the execution of the deed domestic trouble had arisen and she and her husband had agreed to separate. Her husband told her that she “would have to give him a deed to our little girl of what was coming to me out of my mother’s estate. I looked at him and said, ‘What did you say?’ He said, ‘Before we do any business in settling up our estate, you have got to deed to me what is coming in your mother’s estate. ’ I said, ‘You certainly have got your nerve. What has what is coming to me got to do with ourselves ? ’ And he said, ‘It don’t make any difference; you have got to deed to our little girl what is coming to you from your mother’s estate. ’ I did not consent to it. He told me he wouldn’t give me anything of the community property, and I said, ‘You are not to take from me what don’t belong to me [referring to my interest in my mother’s estate], and you are not entitled to that in any way, shape, or form. ’ When he found I wouldn’t agree with him to do anything on this deed, I said, ‘You can keep everything you have, and I will take everything in the house that my mother gave to me, which will cover most everything in the house, and I will go home to her,’ and later on, I think the day after, he came to me and said, ‘Have you decided to do what I want about that property?’ and I said, ‘No, that property is not mine to give to anybody. Wouldn’t that be a nice thing for my mother to know that I did such a thing with her property ?’ And he said, ‘She will never know anything about it.’ I answered, ‘How can I deed the property over to Loretta without my mother knowing it ?’ He answered, ‘She will never know it.’ When I told him my decision, he said, ‘I will give you a thousand dollars for your share of the community property, and

At the commencement of the trial the court declared that the two causes of action were necessarily inconsistent, and that the plaintiff would ultimately be required to elect upon which one she stood before the defendant put in his case. Further the court stated that he would not compel this election until plaintiff had introduced all of her testimony. When this was done, and plaintiff had rested her case, defendant’s attorney moved that plaintiff be required to elect upon which of the causes of action she would stand. The court granted the motion, and plaintiff’s attorney declared his election to stand upon the first cause of action—that of fraud. Complaint is made of this, and much discussion is indulged in over the question whether or not the counts are inconsistent, and whether or not, if inconsistent, the court had the legal right to compel an election. Little, however, need be said upon the matter. Our simplified method of pleading which requires merely the statement of ultimate facts will not often render it necessary for a complaint to charge "in inconsistent counts. But when for any reason the pleader thinks it desirable so to do, as where the exact nature of the facts is in doubt, or where the exact legal nature of plaintiff’s right and defendant’s liability depend on facts not well known to the plaintiff, his pleading may set forth the same cause of action in varied and inconsistent counts with strict legal propriety. (Pomeroy’s Code Remedies, sec. 467; Remy v. Olds, 4 Cal.

Upon the appeal appellant’s attorney does not argue with much conviction against the decision of the court in the matter of fraud and of duress. Indeed, he cannot well do so, since the latter cause of action was wholly unsupported by the evidence, and the first was decided against plaintiff under conflicting evidence. He therefore shifts his ground and advances with great earnestness-the contention that the evidence clearly establishes a breach of trust, an abuse upon the part of the husband of the confidential relation existing between himself and wife—a gross advantage taken by the husband in his dealings with his wife, as evidenced by the disparity between the price the husband paid for the property—one thousand dollars—and its value, which is asserted to have been fifteen thousand dollars. Wherefore it is said that by virtue of section

The judgment and the order denying plaintiff’s motion for a new trial are therefore affirmed.

Shaw, J., Melvin, J., Lorigan, J., Sloss, J., and Lawlor, J., concurred.