Provensal v. Michel

PARKER, J.,

pro tem.

—This is an action in equity wherein plaintiff seeks to have set aside and declared of no effect a certain conveyance of real estate executed by her to defendant Joseph Michel. The property in question since the original transfer has been conveyed to other parties defendant. Prom a judgment in favor of defendants the plaintiff presents this appeal.

The complaint alleges that plaintiff was and is a widow, with little knowledge of the English language and having no familiarity with business transactions; that Joseph Michel, a trusted friend of plaintiff and her deceased husband, had, since the death of said husband, pursuant to a death-bed promise, been the confidential adviser of plaintiff and the one to whom she looked for guidance in her business affairs and in whom she placed full faith and trust; that she had

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no independent advice or no means of knowledge other than through said Joseph Michel.

Summing up the further allegations, the cause of action is that said Joseph Michel, to his own advantage and gain, abused this trust and confidence and, falsely representing to plaintiff that she was signing some document of minor importance, procured from her a deed conveying the property in dispute to one Emile Michel, son of Joseph; that thereafter Emile Michel transferred to the Myers, and the latter conveyed to Monez and his wife. The real property described is in the county of Alameda, state of California.

It is admitted that the deed to Emile Michel was in truth a conveyance to Joseph Michel, the former merely taking the title with no direct interest in the property.

The trial court made a finding as follows: “As to the allegations in that portion of paragraph IX of plaintiff’s amended complaint reading as follows: ‘that .since the death of said plaintiff’s husband said Joseph Michel has been the trusted friend, adviser and manager of said plaintiff,’ the court finds that each, all and singular the allegations contained in that portion of paragraph IX of said amended complaint last above quoted are and each of them is untrue.”

The first contention of appellant is that this finding is contrary to the admission in the pleadings. The complaint alleges “That since the death of said plaintiff’s husband said Joseph Michel has been the trusted friend, adviser and manager of said plaintiff.” The answer of defendants Michel is as follows: “Denies that since the death of said plaintiff’s husband said Joseph Michel has been the trusted friend, adviser and manager of said plaintiff.” The argument of appellant is that, the relationship having been admitted, the burden of proof shifted to defendants Michel to show the utmost good faith in all of their transactions with plaintiff. "Whatever the argument may be, the case discloses that no effect was given -this claimed admission in the court below. Both sides proceeded with the case on the theory that the relationship between plaintiff and Michel was an issue in the cáse, and the trial court found against plaintiff thereon. It may well be that the denial is pregnant with some admissions, but an analysis would result only in a construction of the language employed. It is a