Godfrey v. Godfrey

The plaintiff and respondent instituted this proceeding for the recovery of a certain parcel of real property situated at Beverly Hills, in Los Angeles County, which she alleged that appellant had obtained from her by coercion, threats to impugn her character and chastity, duress, undue influence, and extortion.

The appellant and respondent intermarried on February 3, 1922, at which time the latter possessed and held in trust Liberty bonds of the value of fifteen thousand dollars, and other personal property belonging to her infant daughter, issue of a former marriage, named Ruth Meloy, and which were on deposit in a safe deposit box at the Los Angeles Trust & Savings Bank. On March 3, 1922, appellant purchased and caused to be conveyed to respondent the real property involved in this suit as a wedding present. Shortly thereafter appellant commenced, both personally and through friends and relatives of the respondent, a persistent course of urging and persuasion to induce Mrs. Godfrey to deliver the Liberty bonds to him for investment, which she repeatedly refused to do. Appellant then prevailed upon his wife to share with him the use of her safe depqsit box, for which purpose she permitted him to register at the bank, but retained the key, which she concealed in a portfolio at home. On or about April 19, 1922, appellant surreptitiously abstracted the key from the portfolio, without the knowledge or consent of respondent, proceeded to the bank and withdrew the Liberty bonds, which he delivered to and listed

The trial court rendered judgment herein for the plaintiff and the defendant appealed. It is insisted that the return of the Liberty bonds, conveyance of the real property and dismissal of the replevin suit was a legitimate compromise of pending litigation, and that it constituted a contract between the parties; that the evidence does not tend to show such a degree of duress as would entitle the plaintiff to rescind, and hence that the judgment should be reversed. Appellant cites but a few authorities, none of which is applicable to the case at bar. He seeks to rely upon subdivision 2 of section 1569 of the Civil Code, which defines duress as the unlawful detention of the property of a person illegally restrained, and Standard Box Co. v. Mutual Biscuit Co., 10 Cal. App. 746 [ 103 Pac. 938 ], holding that a mere threat to withhold a legal right which one may legally enforce does not constitute duress. It is true that the acts of appellant did not consist of duress as defined by the section of the Civil Code cited in his brief, nor was the clandestine abstraction of the bonds and offering them for sale a mere threat to withhold them. But this is unimportant, for although the term “duress” was incidentally pleaded as a ground for recovery by the plaintiff and respondent, it was also alleged, the evidence strongly indicated, and the trial court found, that appellant’s acquisition and retention of the Liberty bonds was unlawful and indefensible, and that he obtained a mere record title to the realty by threats, undue influence, and extortion, and hence without consideration; from which it results that had the technical term “duress” been entirely omitted from the

" That no benefit was conferred or agreed to be conferred upon the plaintiff to which the plaintiff was not lawfully entitled by reason of said deed, nor was any prejudice suffered or agreed to be suffered by said defendant other than such as he at the time was lawfully bound to suffer. That plaintiff did not receive any consideration or anything of value by reason of her said deed to Marion G. Wilson, and that there was not any consideration whatever for said deed. That said deed was not the free and voluntary act of plaintiff, but was extorted from plaintiff by defendant by the said threats and statements of defendant, and was executed by her under fear of the same. That said plaintiff would not have executed said deed to defendant, excepting for said acts, threats, and statements of defendant.”

Appellant denied both in his answer and upon the stand the essential allegations and testimony of respondent upon this issue, but the trial court found, and we think justly, that there was no consideration for the conveyance of the real property to him, and it is not within the province of this court to question a finding and judgment founded upon conflicting evidence. It is asserted in appellant’s brief that the respondent was guilty of laches in delaying nine months to commence this action, but laches was not an issue at the trial, and cannot be raised for the first time on appeal. (Parkside Realty Co. v. MacDonald, 166 Cal. 426 [ 137 Pac. 21 ].)

It is contended that evidence of the contents of the answer filed by appellant in the civil suit brought by respondent to secure the return of her daughter’s bonds was improperly refused admission in this case. The reason assigned for this claim is that the answer would have shown the contention of appellant in the former action, and that this would have established that respondent, through her attorney, had knowledge of such claim, and that proof of such contention and of respondent’s knowledge thereof would have tended to show that in the settlement of the former suit appellant relinquished a right which constituted consideration for the settlement between the parties. The mere statement of this argument is sufficient to show its utter lack of logic. It is surely a novel suggestion that one who, with

No other points are presented which require discussion. The judgment is affirmed.

Works, J., and Thompson, J., concurred.