Lane v. Smith

DORAN, J. This is an appeal by intervener from an adverse judgment in an action by intervener to enjoin the sale of certain property by the trustee of a trust deed after default.

Briefly, the record reveals that Edward N. Wilson, a man 80 years of age, married Mary Ellen Wilson, intervener herein, December 10, 1938. A few days before, Wilson had taken his nephew Laurel Edward Smith to the office of Lane and Lane, attorneys for Wilson, where, at his, Wilson’s, direction, the trust deeds in question were prepared. They were executed and acknowledged on December 12th and later recorded. One of the trust deeds secured a note in the sum of $11,341 payable to the estate of Emma Wilson Smith, deceased, sister of trustor, and was the renewal of a trust deed to secure a like amount executed in 1931. The other secured a note in the sum of $4,016 in favor of said Laurel Edward Smith. Both were due one year from date.

In March, 1939, Smith, in appropriate proceedings, was appointed guardian of the person and property of Wilson, who later was confined in a sanitarium. Thereafter, Smith petitioned the court to be relieved as guardian, which was granted, and Mary Ellen Wilson was appointed guardian of the person and estate of her husband Edward N. Wilson.

Upon learning of the contemplated sale under the trust deeds in question, appellant, as guardian, commenced an action to enjoin said sale oh the grounds of fraud, undue [342]influence and lack of consideration. The cause was set down for trial and the day before the trial, Wilson died.

Lane, one of Wilson’s attorneys, was appointed administrator of Wilson’s estate, whereupon leave was granted for appellant to intervene to litigate the issues raised by the original complaint and afterwards incorporated in the suit in intervention. With certain exceptions, defendants denied by answer generally' and specifically the allegations contained in intervener’s complaint and also set up separate defenses.

The trial court found in favor of defendants and against intervener on all issues but, in the last numbered finding of fact, to wit, number thirteen, the court found as follows: “The Court" finds that the allegations contained in Paragraphs I, III and IV of Defendants’ Second and Separate Defense in Defendants’ Answer to Plaintiff’s Complaint, and each of them are untrue.” (Italics added).

Paragraph I of the defendants’ separate and second defense admitted that, for a valuable consideration, the $11,341 note and trust deed was executed and delivered by Edward N. Wilson. Paragraph III alleged the default and Paragraph IV alleged that at the time said note and deed of trust were executed, Wilson was sound in mind and body and was in all respects competent to transact business.