Loftis v. Marshall

SMITH, C.

—This suit was brought against the defendant Mary E. Marshall, as administratrix of Samuel J. Marshall, deceased, to quiet the plaintiff’s title to the land described in the complaint, against an instrument purporting to be a deed from the plaintiff to Mary Loftis, his wife (the grantor of the deceased), and against the claims of the defendants generally. The other defendants are Margaret Marshall, the only child of the deceased, a minor, and Mary E. Marshall, in her personal capacity. The plaintiff had judgment, from which the defendants appeal. The facts of the case, as alleged in the complaint and as found, are as follows: The deed referred to, of date January 23,1892, was signed by the plaintiff, then owner of the land in question, by the fraudulent procurement of his wife and her son, George D. Marshall. The plaintiff was at the time in a drunken condition, and wholly incapacitated from attending to business, and was induced to sign the deed by representations made to him by them that it was a letter to one Horrigan, and by the belief to that effect thus engendered. The deed was witnessed by George D. Marshall, and was proved

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and recorded. Afterwards, Mrs. Loftis, in consideration of love and affection, made a deed of the land to the deceased, Samuel J. Marshall, also her son, who took with full notice of the fraud. Samuel J. Marshall died September 21,1894, and his administratrix — who was appointed in October, 1894— took possession of the premises. The sufficiency of the evidence to support the findings is not disputed.

The defendants,.besides other matters, pleaded, in bar of the action, the judgment in a former suit brought by the plaintiff against Mary Loftis, Mary E. Marshall, and Michael Maloney to recover the possession of the land now in question, and on the trial the judgment roll was offered in evidence, but, on objection being made to .it, excluded, and this ruling, it is contended, was erroneous. This contention presents the principal question in the case.

The position of the appellants in this regard is, that, under the allegations of the complaint, the plaintiff’s deed to his wife was not merely voidable, but void, and hence that the plaintiff’s action is based upon and puts in issue the legal title, thus presenting the same issue as in the former case. This contention is perhaps correct, in so far as it assumes that upon the facts alleged in the complaint the deed in question was wholly void.