Millar v. Bell

RICHARDS, J.

This action was brought by the plaintiff for the cancellation of a deed of conveyance of an undivided one-third interest in the real property described in the complaint which he had executed and delivered to the defendants Charles H. Bell and Mary E. Bell by reason of the alleged coercion and breach of confidence of said Charles H. Bell. He also prayed for the cancellation of a deed of trust executed by said defendants to their codefendant Mercantile Trust Company. By its judgment the court granted the relief sought, and the defendants have appealed. •

It is contended by them that the judgment is not supported' by the evidence, for the reason that the evidence shows, first, that the deed of conveyance in question was freely and voluntarily executed by the plaintiff, and, second, that after discovery of the facts upon which the plaintiff bases his right of rescission and cancellation he ratified his act in executing said deed.

Findings were waived by the parties, but the record contains all of the evidence taken at the trial.

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As might be expected in an action of this character, the evidence is strongly conflicting, but resolving that conflict in favor of the version of the transaction adopted by the trial court in arriving at its judgment, the facts may be summarized as follows: Charles H. Bell is the brother-in-law of James B. F. Millar, the plaintiff, and Mary E. Bell is his wife and the sister of James. The father of the latter died about six months before the occurrence of the events out of which the present litigation arose, leaving an estate of the value of about one hundred and eighty thousand dollars, consisting principally of real property, one-third of which was bequeathed and devised to his said son. James had contracted the habit of drinking intoxicating liquors to

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excess, and when under the influence of this habit spent his money recklessly and contracted debts; indeed, on several occasions, for the purpose of procuring means to continue his excesses, he had resorted to the forgery of cheeks. On said occasions his brother-in-law had proved to be a staunch and loyal friend and invariably came to his assistance. In the early part of November, 1915, James was in urgent need of money, and so by letter informed Mr. A. E. Bolton, the attorney for the executors of his father’s estate, and who had long been the attorney for James Millar, Sr., the father, and was intimately acquainted with the members of the family. James’ father had been aware of his son’s weakness and had realized that he might at some time be in trouble as a result thereof, and had expressed the desire to his attorney and friend, Mr. Bolton, that he come to his boy’s aid should occasion arise. James at this time wras residing in Dinuba, there engaged in the practice of dentistry, earning thereby some two thousand or three thousand dollars a year. Upon receipt of his letter Mr. Bolton consulted with Charles H. Bell. They both realized that this demand of James for money indicated that if something were not done to control him he would probably upon coming into his share of his father’s estate rapidly dissipate it in unwise and reckless expenditure when in his periodical debauches. They decided to visit James at Dinuba and talk things over. They accordingly did so, and there proposed to him that he should enter into some arrangement by which he would be protected from dissipating the inheritance of which he was soon to come into control. Several methods were suggested —one, that a guardian be appointed for James’ estate; another, that an annuity be purchased for him; and, again, that his property be placed in trust for his benefit. James refused to consider the proposed guardianship or the annuity, and they were not pressed, but it was mad® to appear quite plainly to him by his brother-in-law that unless he entered into some such arrangement he need expect no financial’ aid in his embarrassment. It is even testified.by James that his brother-in-law at this time referred pointedly to his infractions of the law above mentioned and hinted at unpleasant consequences .if he remained obdurate—which, however, seems quite improbable and in all likelihood found little credence in the trial court. At the conclusion of the