Bryson v. Byrer

HOUSER, J.

From the findings made by the trial court it appears that the basic facts upon which the judgment herein is predicated and from which judgment the appeal is taken are that one Isaac W. England and Anna England were husband and wife; that from their community funds they acquired certain real property which, at the request and direction of the husband, was deeded to the wife, and that several years thereafter the wife deeded the property to the husband. The findings recite the further fact that the deed made by the wife to the husband “was delivered to said Isaac W. England without any consideration whatsoever, and solely by reason of undue influence exercised by said Isaac W. England over the said Anna England; ... by which said deed and transaction said husband obtained an advantage over his wife and was thereby enriched to the extent of the value of said real property.”

Judgment was rendered in favor of plaintiff.

One of the points made by appellants for reversal of the judgment is that on the trial of the action no evidence was offered by the plaintiff which proved or tended to prove any of the allegations of the complaint with reference to the execution of the deed in question. An examination of the pleading on the part of plaintiff discloses -the fact that the allegations to which attention is thus directed in substance were that said deed was executed contemporaneously with another deed covering the identical property mentioned in the first deed, made by the husband to the

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wife; that each of said deeds was then placed in a safe deposit box, to which each of the parties at all times had access, with the intent and purpose on the part of the wife that each of said deeds was to be delivered and become effective only in the event of and upon the death of the grantor thereof; but that notwithstanding such situation of the parties with reference to such deeds, and in violation of the understanding thereof on the part of the wife, the husband caused the deed to him by the wife to be placed of record.

No specific finding with reference to such allegations was made by the trial court, but with regard thereto the trial court in substance did find that the husband never executed the deed to which such allegations referred. In such circumstances the criticism of appellants in that connection becomes of no importance.