Vice v. Morris

KNIGHT, J.,

pro tem.

George B. Clifford executed two deeds, dated August 24, 1918, and November 7, 1918, re

[443]

spectively, purporting to convey to the defendant, Sadie L. Morris, certain real property situate in Napa County. Clifford died on June 22, 1919. This action was commenced hy his surviving wife, individually, and in the capacities of guardian of her son and executrix: of Clifford’s will, to set aside those deeds, upon the ground of the insanity of Clifford. The action was tried hy the court sitting with a jury. A general verdict was rendered for the plaintiffs, and judgment entered accordingly. The defendant, Sadie L. Morris, has appealed.

Clifford, the grantor, and Grace L. Clifford, the plaintiff, were married on May 17, 1912, and there was horn to them one child, Gerald B. Clifford, who, at the time of his father’s death, was five years of age. Clifford and his wife lived unhappily, having separated on some five different occasions. Finally, on April 2, 1919, Mrs. Clifford, as the result of a divorce proceeding commenced by her, was granted an interlocutory judgment of divorce from Clifford, upon the ground of extreme cruelty, and was awarded the custody of the child.

Three grounds are urged by appellant for a reversal of the judgment, namely: that the amended complaint is fatally defective, insufficiency of the evidence to prove that Clifford was insane, and error in the instructions to the jury.

Appellant claims that the amended complaint fails to state a cause of action because it contains no allegation that the grantor, at the time of the execution of the deeds, Was ‘entirely without understanding. ’ ’ It should be stated, however, that appellant did not demur to the complaint, and, so far as the bill of exceptions discloses, did not make any objection whatever to the admissibility of any part of the proof upon that or any other ground. It may therefore be assumed that the case was tried, by the defendant, upon the theory that the amended complaint was good.

However, as stated by appellant, if the amended complaint wholly fails to state a cause of action, this point may be raised, even for the first time, on appeal, and we have therefore proceeded to examine the points made by appellant against the sufficiency of the amended complaint.