Whitmore v. Ainsworth

SEARLS, C. This is an action brought to set aside and annul a deed executed on or about July 26, 1890, by Charlotte S. Jones to the defendant A. G. Ainsworth, upon the grounds that the same was without consideration, fraudulent and void. Defendants had judgment, from which, and from an order denying their motion for a new trial, plaintiffs appeal.

The action was commenced in the name of Charlotte S. Jones as plaintiff, who departed this life before the trial, and the present plaintiffs, the executors of her last will, were thereupon substituted as plaintiffs in the cause. A synopsis of the complaint may be thus stated: (1) On the twenty-second day of July, 1890, Charlotte S. Jones, the plaintiff, acquired a legal title to the lot of land described in the complaint by deed from Welles Whitmore. (2) Plaintiff was at the time a servant of defendant, who went with her, on the twenty-sixth day of July, to the office of Whitmore, for the purpose of receiving said deed, and thence to the office of the county recorder, where defendant represented to plaintiff that, in order to have said deed recorded, it was necessary for her to acknowledge it; a'nd plaintiff, believing this statement to be true, made, as she supposed, such acknowledgment, but in fact acknowledged a fraudulent deed, which defendant had prepared from her to himself of the property. (3) That there was no consideration therefor. (4) That plaintiff was able to write, but said deed to the defendant was signed with plaintiff’s mark: (5) That the deed was not made, signed, executed or acknowledged by plaintiff, and if her name is signed thereto it is a forgery. (6) Plaintiff was old, feeble and unacquainted with business, and defendant, well knowing that fact, took advantage of her incapacity, fraudulently procured her to acknowledge said deed, which he recorded, and now claims to be the owner of said lot of land. There are also allegations to the effect that defendant afterward executed a mortgage upon the lot to the Oakland Bank, of Savings to secure the payment of $400, which mortgage was duly recorded. That the said bank took with notice and knowledge of the ownership and possession of plaintiff in and to said land, etc. Defendant’s answer denies that [874]the deed from plaintiff to him was without consideration, and denies all fraud in its procurement. It further sets out that in July, 1890, Welles Whitmore had title and possession of the lot of land in question under a deed of conveyance from plaintiff, claiming to hold it as security for $175 asserted to be due him from plaintiff; that plaintiff was desirous of redeeming the same from Whitmore, but was unable to procure the means so to do; that plaintiff and defendant thereupon entered into an agreement whereby the latter agreed to and did advance the money to pay Whitmore, and to support, maintain and care for plaintiff, and to furnish her all the necessaries of life, including board, lodging, clothing, medical attendance, etc., during the full period of her natural life, to pay her lodge, insurance and society dues and assessments, in return for which plaintiff agreed to convey to him by deed absolute the title in fee to the lot of land in question; that in pursuance of said agreement defendant advanced the money, paid Whitmore, who conveyed to plaintiff, and the latter then conveyed to defendant the said lot, and placed him in possession; that defendant complied with all the conditions of the agreement to be by him kept and performed, etc. Defendant also incorporates in his answer, and makes a part thereof, an affidavit, made and duly certified before a notary public by the plaintiff, in which she states that she is old, feeble ‘and without near relatives; that defendant and his family have been her friends; that defendant advanced the money to pay Whitmore, and that she then knowingly and voluntarily executed and acknowledged the conveyance to defendant, who has faithfully kept his agreement with her; that the allegations of fraud in her complaint are untrue; that she never authorized this action, never read or heard the complaint read, and was not aware of its contents, and knew nothing of its being filed, paid no costs or fees, and directs that the same be dismissed at once.