McDougall v. McDougall

HAYNES, C.

Appeal from a judgment of nonsuit. The defendant is the widow of James McDougall, deceased; the plaintiffs, his children by a former marriage. The latter sue to cancel a deed dated June 9, 1899, purporting to convey to the defendant a lot in the city of Los Angeles. Plaintiffs allege, in substance, that the deed was never delivered, and, also, that the signature of the deceased thereto was procured by undue influence. On the trial a nonsuit was granted on the grounds (in effect) that the plaintiffs had failed to show either undue influence or that the deed was not delivered.

1. As to the former ground, there was, in fact, no evidence tending to show undue influence, unless it-be the relation of husband and wife existing between the parties to the deed; and this relation, under the authority of

Tillaux

v.

Tillaux,

115 Cal. 670, (affirmed in

White

v.

Warren,

120 Cal. 324;

Sheehan

v.

Sullivan,

126 Cal. 192;

Stiles

v.

Cain,

134 Cal. 170,) must be regarded as, of itself, having no such effect. “Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject in transactions between themselves to the general rules which control the actions of persons occupying confidential relations with each other as defined by the title on trusts.” (Civ. Code, sec. 158.) In

Stiles

v.

Cain,

134 Cal. 170, in speaking of said section, Mr. Justice Temple said:—

“But in giving her the right freely to contract in regard to property with her husband, the legislature naturally sought to give her some protection from the influence of her husband. The right to control her own affairs would not free her from what in fact is, and is always presumed to be, the predominating influence of her husband. . .This section was a change in that system,” (the common-law system) “in favor of the wife, and the protection here furnished is to her. I do