Fowler v. Enriquez

This is an action to cancel a deed. Manuela R. Fowler, the real party in interest, although the action was brought in the name of her guardian, as plaintiff, is a surviving daughter of Juana E. Enriquez, the maker of the deed in question, now deceased. Defendant is a sur

The complaint in the action is grounded upon undue influence and fraud, but appellant contends that it does not state facts sufficient to constitute a cause of action. It is true that plaintiff’s pleading sets up the facts going to substantiate the claim of fraud and undue influence in somewhat general terms. Still, we are not prepared to assert that they are alleged in such a manner as to render the complaint insufficient even if the question had been presented and argued on demurrer in the trial court. [1] Certainly the pleading is far from barren of averment on the question, and when a complaint is not totally devoid of allegation upon a particular point and the objection that it is insufficient in that regard is first made on appeal, the trial having been conducted by the objecting party upon the theory that it was sufficient, all of which is the case here, it will be upheld (Slaughter v. Goldberg, Bowen & Co., 26 Cal. App. 318 [ 147 Pac. 90 ]; Noakes v. City of Los Angeles, 179 Cal. 38 [ 175 Pac. 409 ]; Meer v. Cerati, 53 Cal. App. 497 , [ 200 Pac. 501 ]).

[2] At the time of the execution of the deed appellant for a long time had been the confidential adviser and business agent of his mother, the grantor, who was aged and infirm, who could read and write no language and who spoke only Spanish. Under these circumstances there is a presumption that appellant unduly influenced his mother to execute the deed to him (Hemenway v. Abbott, 8 Cal. App. 450 [ 97 Pac. 190 ] ; Nobles v. Hutton, 7 Cal. App. 14 [ 93 Pac. 289 ]; Thomas v. Whitney, 186 Ill. 225 [ 57 N. E. 808 ]), and this presumption is relied upon by respondent. It is contended by appellant, however, that the presumption was overcome by testimony introduced by him. There was considerable testimony presented by appellant on the subject, it is true, but we cannot say that it was sufficient to outweigh the presumption. [3] The solution of that question was within the peculiar and final province of the trial court, for the presumption on the one hand and the testimony opposed to it on the other presented but a conflict of evidence. The finding of the trial court on the subject is final (French Bank v. Beard, 54 Cal. 480 ).

Appellant contends that the complaint fails to state a cause of action because it contains no allegation that plaintiff offers to return to defendant a consideration paid by him for the execution of the deed sought to be canceled. As to this point it is enough to say that the complaint does not show that defendant paid any consideration for the deed. In fact, a proper construction of the allegations of the pleading would seem to indicate a contrary state of facts.

A different question is presented by the evidence. The answer alleges that, as a part consideration for the deed, appellant and his mother at the time of its execution entered into an agreement in writing, a copy of which is attached to the pleading. This paper recites that the deed “was made for the nominal consideration” and that a further consideration is expressed in the agreement. Then follow promises on the part of appellant to care for and maintain his mother during her natural life, providing for her a proper home; to pay all her reasonable bills, including ductor’s bills and household expenses; to pay at her death “all funeral expenses and charges and also cemetery charges and provide a proper and decent burial”; to pay a certain cemetery “up to date for keeping the bodies” of the deceased husband of the mother and of certain other of her relatives and for the removal of the bodies from the re

[5] Appellant contends that the trial court should have ascertained the amount paid by him as a consideration for the deed, referred to in the agreement as a nominal consideration, and the amounts paid by Mm pursuant to his promises made in the agreement; and that the decree should have provided in some manner for his reimbursement, as a condition upon which a cancellation of the deed might follow. The contention of appellant must be sustained. The trial court found that the deed was executed as a result of the undue influence of appellant over his mother and through fraud practiced by him upon her, and this finding is sustained by the evidence, even granting that a consideration for the instrument passed between them. Such payments as appellant made to his mother, or to others under the terms of the agreement above mentioned, appear by the evidence to have been grossly inadequate as a consideration for the execution of the deed, for it is alleged in the complaint and not denied by the answer that the property conveyed was of the appraised value of $51,000 and produced a monthly income of $150. Therefore the trial court was correct in canceling the deed because of the undue influence and fraud which figured in its execution. The consideration paid by appellant is an immaterial circumstance when the situation is viewed from the standpoint of the binding effect of the deed. That, however, is far from saying that appellant is not entitled to a return of such sums of money as may have been paid by Mm to his mother for the deed, or to third parties under the agreement. The general rule is that one seeking to rescind a deed or agreement must

Judgment reversed and cause remanded for further proceedings in accordance with this opinion.

Pinlayson, P. J., and Craig, J., concurred.