Brown v. Burbank

Appeal from an order granting the defendant a new trial, in the Superior Court of the County of Sacramento. Clark, J.

The complaint—after in substance alleging that the father of deceased died seised of the land • in controversy, leaving the plaintiff his sole surviving heir; that the defendant, P. D. Burbank, father of the deceased, was duly appointed administrator of his estate; and that he and his wife (also defendant), though not appointed the plaintiff’s guardians by the Court, in effect acted as her guardians during her minority—alleged as follows:

“ Plaintiff avers that on the seventeenth day of May, 1877, and while defendant P. D. Burbank was the administrator of said estate as aforesaid, these defendants falsely and fraudulently represented to her, that the hereinbefore described premises were liable for the debts of the defendant P. D. Burbank, and that said premises were in danger of being seized by the creditors of said defendant, and sold under execution; and plaintiff (and defendants, who were then living therein) ousted therefrom, and plaintiff divested of all ownership' thereto, and that in order to preserve, keep, and enjoy said premises, to the use and occupation of plaintiff, it was necessary for plaintiff to convey the same to the defendant Irene H. Burbank, and have said defendant file a homestead thereon, and thus prevent the supposed creditors from taking the same. Plaintiff avers that, in the furtherance of said fraud practiced upon her, the defendants, procured a deed to be prepared, and presented the same to her for her signature; and plaintiff relying upon said representations as aforesaid, and the relations existing between them, and believing that it was necessary for her to execute the same, she signed said conveyance, and thereby conveyed said premises to defendant Irene, and the legal title thereto became and now is vested in the defendant Irene, in trust for plaintiff. Plaintiff avers that said conveyance was signed in the name of Clara L. Burbank, her maiden name. Plaintiff avers that said deed was made, executed, and delivered, without consideration of any kind; that said representations were false and fraudulent, and defendants well knew them so to be, and that they were made with the intent and for the purpose of cheating and defrauding plaintiff out of said premises.”

The answer of the defendants, besides denying the material allegations of the complaint as to the circumstances under which the deed was executed, proceeds as follows :

“And for a further answer to said complaint, the defendants aver that the said George W. Burbank, prior to his death, held the legal title to said premises, in trust for these defendants. That these defendants furnished the money with which said real estate was purchased. That the Said plaintiff was, prior to the execution of said deed, informed of such facts, and for the purpose of providing the said Irene H. Burbank with a home, and providing for her better maintenance and support, voluntarily executed the said deed to said Irene H. Burbank. That no false or fraudulent representations of any kind were made to the said plaintiff, and no undue influence was used to induce her to make, sign, or execute said deed.”