Carty v. Connolly

Garoutte, J. This is an equitable action by the plaintiff, a sister of the defendant, asking that a certain [18]deed to the premises described in the complaint be set aside, upon the ground that at the time it was executed by Mary Connolly, another sister of defendant, she was acting, under undue influence, and was also of such feeble mind as to be unable to understand the nature of the transaction.

Upon August 26, 1887, Mary Connolly sustained serious injuries from an accidental burning, from which injuries her death resulted upon the thirteenth day of the following month. The deceased and her brother Patrick, the defendant, had resided upon the land in dispute for many years, and it had been acquired by their mutual efforts. The legal title to the entire property was vested in Mary, though Patrick had paid for one half of it and was the equitable owner thereof. At the time of the transfer to Patrick, which was the seventh day of September, a mortgage rested upon the property in the sum of fourteen thousand dollars, which by the terms of the deed the respondent assumed to pay. The value of the realty was fifty-six thousand dollars, and there was no pecuniary consideration for the transfer, other than the assumption of the payment of the aforesaid mortgage. The deceased died intestate, and the plaintiff is one of the heirs at law.

Findings of fact were entered in favor of the defendant, and plaintiff has appealed from the judgment and order denying her motion for a new trial. The grounds upon which she relies to set aside this conveyance are, — 1. Constructive fraud; 2. Undue influence.

Constructive fraud is defined by section 1573 of the Civil Code to consist,— “ 1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.” The foregoing definition is in substantial accord with the views of standard authors upon the question.

[19]Appellant insists that constructive fraud is apparent in this transaction from the gross inadequacy of the consideration. The pecuniary consideration recited in the deed is five dollars, and if we understand appellant’s position, it is, that where a deed is attacked upon the ground of inadequacy of consideration, the party in defense of the deed will not be allowed to show the true consideration to be love and affection; or in other words, a consideration different in species cannot be proved. There is no merit in appellant’s position upon this point, and the case of Coles v. Soulsby, 21 Cal. 51, cited in her brief, is conclusive against her. In that case, referring to this identical question, the court says: “It is not a valid objection to the admissibility of the evidence that it showed a consideration different from that expressed in the deed. The consideration clause of a deed is not conclusive. It estops the grantor from alleging that he executed the deed without consideration. It cannot be contradicted so as to defeat the operation of the conveyance according to the purposes therein, designated, unless it be on the ground of fraud; but with this exception, it is open to explanation, and may be varied by parol. A limitation, • it is true, is placed by some adjudicated cases upon the character of the proof admitted; that it must be restricted to establishing a consideration of the same species with that expressed (citing cases). The limitation, however, does not appear to rest upon any sound principle.” In addition, it might be added, the defendant, grantee in the deed, assumed the payment of a fourteen-thousand-dollar "mortgage; and a promise to pay the debt due from the grantor to a third party is a valuable consideration. (Gladwin v. Garrison, 13 Cal. 332; Saunderson v. Broadwell, 82 Cal. 133.)