Stromberg v. Tanforan

RICHARDS, J.

This is an appeal from a judgment in favor of' the defendants in an action brought by plaintiff to set aside a deed.

To the plaintiff’s complaint alleging several grounds, to be hereafter referred to, as the basis of her cause of action, the defendants filed an. answer containing specific denials thereof and pleas of the statute of limitations as a bar to said action. They also allege, by way of affirmative defense, a state of facts in support of their plea of

res adjudicata.

The history of the litigation between the parties as thus shown by their pleadings may be summarized as follows: Prior to the month of February, 1909, the plaintiff, whose name was then Stella Tanforan, and the defendant, Frank Tanforan, were husband and wife. Domestic troubles had arisen between them, which led to an agreement of separation and to the execution of a deed from the wife to her husband, both of which instruments were executed on the eighteenth day of February, 1909. The deed covered certain undivided interests in three parcels of property in Marin County which constituted the separate estate of the wife, and were subject to a life tenancy- of her mother, who was then living, and who died in the year 1913. Subsequently, and in the year 1910, Stella Tanforan commenced an action against her former husband, Frank Tanforan, to set a.side said deed upon several grounds. In the first count of her amended complaint in said action she alleged that said deed was procured by said defendant through direct fraud in the making of certain misrepresentations of fact, in reliance upon which she had executed said deed. In the second count of her said amended complaint she charged said defendant with having procured said deed through actual duress consisting of menace and threats. The defendant in that action appeared and denied the averments of both counts of said complaint, and the cause came on- for trial. At the commencement of such trial the court, upon the suggestion of the defendant, declared that the plaintiff’s two counts

[3]

were inconsistent, and that the plaintiff would ultimately be required to elect upon which one of said counts she would stand before the defendant would be required to put in his case. The court, however, stated that he would not compel such election until the plaintiff had introduced all her testimony. When the plaintiff had done this and had rested her case the defendant moved that the plaintiff be required to elect upon which of the counts she would stand, and plaintiff thereupon elected to stand upon the first count in her said amended complaint. At the close of the trial the court made its findings in favor of the defendant, and entered its judgment accordingly, awarding .the plaintiff no relief. Thereupon the plaintiff appealed to the supreme court, and urged upon said appeal that the trial court was in error in requiring her to make an election. The cause on appeal was heard and decided by the supreme court in