Ferguson v. Ash

CHIPMAN, P. J.

This is an action to qniet title to land and to expunge the description of the land from the deed conveying the same. Plaintiff had judgment, from which and from the order denying their motion for a new trial defendants appeal.

It appears from the complaint and was found by the court: That, on October 26, 1907, Martha J. Darwin Reese died testate seized and in possession of the land in question which, by the terms of her last will, she devised to plaintiff. Due proceedings followed in the superior court, sitting in probate, whereby said land was duly distributed to plaintiff on April 5, 1909, and she thereupon became the owner thereof; on April 8, 1907, J. W. Reese and said Martha Reese were husband and wife and on that day executed a deed bearing date January 29, 1907, conveying to defendants sundry different lots and tracts of land and among them the lot the subject of the action; that there was no consideration, save love and affection, for said conveyance to defendants and the description of the land involved in the action was inserted in said conveyance to defendants “by the error and mistake and misprision of the said J. W. Reese and of the said Martha J. Darwin Reese, and of the said M. K. Harris, Esq. (who took the acknowledgment of said deed), caused and committed as follows:” (Here follow in much detail the circumstances surrounding the transaction, as alleged in the complaint and found by the court.) Briefly summarized, the facts shown were: That Mr. Reese and his wife each owned different pieces of real estate, as separate property, in which the other had no interest; Judge M. K. Harris had been and was the attorney in the transaction of business for both Reese and his wife; on or about January 27, 1907, Reese instructed Judge Harris to draw a deed sufficient in form to convey to defendants, who were his daughters by a former marriage, ‘ ‘ an undivided onelialf of his real property then owned by Rim lying between Ventura Avenue and Butler Avenue, in the county of Fresno, and the said J. W. Reese did not give to the said M. K. Harris any particular description of said property, but delivered to said M. K. Harris an old deed, or mortgage containing a description of various deeds of real property” and instructed

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him to get his description from these documents and insert it in the deed, which Judge Harris did; thereafter, about April 8, 1907, said Reese signed and acknowledged this deed and left it with Judge Harris with instructions to retain it until after his death and thereupon to record it; thereafter, and on the eighth day of April, 1907, Reese’s wife came into Harris’s office “and stated that her husband had requested her to join with him in the deed which he had made to his two daughters, because the said J. W. Reese was afraid some objection would be made to the title if this was not done,” whereupon Mrs. Reese signed and acknowledged the deed; that, before signing it, Judge Harris “informed her that all the property described therein was the separate property of her husband, J. W. Reese, and none other,” and upon this information and without reading the deed she signed it, “under the mistaken opinion and belief that all of the property described therein was the separate property of her said husband, J. W. Reese, and in ignorance of the fact that she herself had title to any of the property mentioned and described in said deed”; that she so signed without any intention of conveying to defendants any title or estate in the property mentioned in the complaint; that, on January 29, 1907, Mrs. Reese was the owner, seized in fee and in the possession of said property last referred to and so remained to the day of her death and was ignorant of the fact when she signed said deed that it purported to convey to defendants any ownership or interest in said property.