Hite v. Mercantile Tr. Co. of S.F.

SHAW, J.

In the court below, upon sustaining the demurrer of certain of the defendants to the amended complaint, judgment was given in favor of said defendants against the plaintiff. The plaintiff appeals.

We think the judgment is not to be construed as a judgment in favor of all the defendants, but only in favor of those whose demurrer to the complaint had been sustained as therein recited. Hence the objection that the judgment was in favor of the other defendants and was consequently irregular is without foundation.

The complaint states facts upon which the plaintiff seeks a decree vacating a judgment against her in favor of one John R. Hite and declaring void certain agreements between her and said John R. Hite. The only points which it is necessary to notice may be presented by a brief outline of the facts stated in the voluminous complaint. Plaintiff alleges that she intermarried with John R. Hite in the year 1872, that said marriage remained in full force until the death of John R. Hite, which event occurred on April 18, 1906, that in 1898 plaintiff began an action in the superior court of Mariposa County against Hite for a divorce and a division of the community property, that Hite answered denying the marriage relation; that on April 28, 1900, she was fraudulently induced to and did, execute an agreement with Hite to release all her interest in his property and all claims against him, upon payment to her by him of the sum of twenty-one thousand dollars, which agreement, however, does not appear to have been performed by either party; that on April 29, 1901, she was by Hite fraudulently induced to and did execute another agreement with him, whereby, in - consideration of sixteen thousand dollars then paid to her, she released all claims against him and all her present and future interest in his community property, and all interest as heir at law, or otherwise, in or against his estate after his death, that thereafter, at a date not stated, the

[767]

divorce action was tried and judgment was given therein that she was not and never had been the wife of said Hite and that she take nothing by said action, and that this judgment also was obtained by fraud. The prayer is that these agreements be adjudged null and void and that the judgment be vacated. The facts constituting the alleged frauds by which it is claimed the plaintiff was led to execute said agreements and by which said judgment was obtained are fully set forth. It is unnecessary to state them at length.