Seymour v. Cariker

California Court of Appeal Sep 17, 1963 No. Civ. 7083Published

Before: Griffin

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Holding. The court held that the trial court erred in striking the defendant's affirmative defense of unclean hands and fraud, and that the failure to substitute the deceased plaintiff's personal representative necessitated a reversal and new trial.

Issues

Whether the trial court erred in striking the defendant's second affirmative defense alleging unclean hands and fraud.
Whether the failure to substitute the deceased plaintiff's personal representative as a party requires reversal.

Disposition. reversed

Quotations verified verbatim against the opinion

“However, since both the claim of unclean hands and fraud claimed in the second affirmative defense in the answer were stricken, we believe this to be error”

“Therefore it appears that a substitution should have been made of the administrator as a party to this action in the lower court.”

“A new trial should be had.”

GRIFFIN, P. J.

This action for reformation of a deed, dated and executed July 9, 1936, was instituted on February 8, 1960, by E. D. Seymour and his wife Bessie A. Seymour, plaintiffs, cross-defendants and respondents, against Sarah Cariker as administratrix of the estate of J. D. Cariker, deceased. The property involved was an 80-acre parcel of land in Yucca Valley. The record comes to us only on the clerk’s transcript. According to the complaint, J. D. Cariker delivered a deed to his son-in-law, plaintiff E. D. Seymour, to:

“The East Eighty (80) acres of the North East One Hundred Sixty Acres (160) of Section Two (2), Township One (1) South, Range Five (5) East, S. B. B. & M.”

The description of this property should have been “Government Lots 8 and 9 of Section 2, Township 1 South, Range 5 East,” making a difference of 10 acres. On December 21, 1938, plaintiff E. D. Seymour deeded the property under the mistaken description to himself and his wife (plaintiff Bessie A. Seymour) as joint tenants. It is alleged that the mistake in the description was not discovered until about November 1, 1959, when a certificate of title was sought. Reformation of the first deed accordingly was sought.

Defendant administratrix answered, denied generally the allegations of the complaint, and, as a first affirmative defense, alleged that there was no consideration for execution of any of the instruments. In a second defense, it was alleged that plaintiffs came into court with unclean hands, in that prior to the delivery of the deed E. D. Seymour represented to decedent J. D. Cariker that he would hold such property in trust for him and would reconvey it upon decedent’s request. The third affirmative defense alleges that plaintiffs were guilty of laches and unreasonable delay of more than 20 years in bringing this action. As the fourth, fifth, sixth and seventh defenses, it is alleged that the complaint is barred by Code of Civil Procedure, section 337, subdivision 1, section 338, subdivision 4, section 339, subdivision 1, and section 343.

A cross-complaint was filed by defendant, alleging the death of J. D. Cariker on December 18, 1959, and that his administratrix was appointed on January 25,

1960. The

administratrix (cross-complainant herein) alleged generally

[303]

Seymour v. Cariker

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GRIFFIN, P. J.

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