Gordon v. Gordon

WOOD (Parker), J. Action to set aside a deed upon the ground that it was procured by duress. Defendant appeals from judgment in favor of plaintiff.

Plaintiff and defendant were married in 1945, and at that time plaintiff owned certain real property as his separate property. On March 10, 1947, defendant caused a complaint to be filed by the district attorney charging that plaintiff assaulted defendant on March 8, with a deadly weapon, and that he violated section 273d of the Penal Code (inflicting injury upon wife). On March 10, defendant was arrested upon said charges and placed in jail. On March 12, he was released on bond. His preliminary hearing was set for March 17.

[482]Plaintiff testified that after he was released on bond he returned to his home (the property involved here, where plaintiff and defendant lived); defendant then said to him: “Well, I got you where I want you and you will go down to Ban [an attorney]. ”; he went to the office of Mr. Bau (on March 13) because defendant told him to go there; the attorney told him that he (plaintiff) was in a mess and that he could get a number of years in San Quentin; plaintiff then asked, “ [H]ow do I get out of it?”; the attorney, who then had a joint tenancy deed in front of him (a deed from plaintiff to plaintiff and defendant as joint tenants), said, “Just sign that.”; the attorney also said that the charges would be dropped if he signed the deed; he signed the deed believing that the charges would be dropped, and he would not have signed it if he had not so believed; on March 14 he and defendant went to Mr. Ban’s office and talked with him regarding a dismissal of the case; the attorney said he would go to the district attorney’s office and do the best he could; then the three of them went to the district attorney’s office; a man in that office asked defendant if a weapon was used; she and the plaintiff said that no weapon was used; nothing was said at that time about having executed a deed; they went to court on March 17 and Mr. Bau told the court that defendant’s tongue was cut by her teeth, and defendant told the court that no weapon was used.

On March 17, at the preliminary examination, defendant testified that plaintiff did not use any weapon and she did not want to prosecute him. Mr. Bau told the court that he believed that no deadly weapon was used, that the mouth injury was due to a lower dental plate that did not fit well, that there was some question about this having occurred, and that he moved that the case be dismissed.