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shown the marital relation and want of | after this intention was formed she went to consideration, she falls short of making out her husband's store, met the notary, signed a case of undue influence. She cannot there the deed, and went home. No conversation stop and shift the burden to defendants to at all took place, no one was present save prove that this confidence has not been Mr. and Mrs. Yordi and the notary. And this abused. The burden is upon her to go fur- | brings us to the consideration of another ther, and show that the husband made use of strong circumstance usually considered in the confidence reposed in him by his wife determining undue influence, namely, Mr. for the purpose of obtaining an unfair ad- | Yordi employed the notary and conducted the vantage over her. Section 1575, Civ. Code. whole transaction. Our Code provides that In determining this question, the fact that a husband is bound to act in the highest they were husband and wife when the deed good faith towards his wife, and may not was executed is to be considered as one o. obtain any advantage over her by the slightthe facts in connection with the other facts est misrepresentation, concealment, threat of the case, and it has more or less weight or adverse pressure of any kind. Sections in determining the question. The relation 159, 2.228. Civ. Code. There must be no conis one that is easily used and easily abused. straint upon her or against her free will Is Justice Temple has said in Stiles v. Cain,

of what she is unable to refuse. Greenleaf supra: "The right to control her own affairs on Er. $ 688. would not fiee her from what usually in "As the writers upon the subject would fact is, and is always presumed to be, the put it, he must deal with her at arm's length. preilominating intluence of her husband.'

And closely connected with this fact is the The want of consideration is also a fact

fact that Mrs. Yordi had no independent or present in this case, and, while a deesi other advice. I take it to be a well-estabsolemnly executed will not be declared roid lished principle of this court that persons for this reason, if in fact nothing was re

standing in a confidential relation towards ceived by the grantor, or if the consideration

others can not entitle themselves to hold was so small as to 'shock the conscience,

benefits which those others may have collyet the fact is one to be considered with the

ferred upon them, unless they can show to other facts indicative of an abuse of con

the satisfaction of the court that the person fidence. People make gifts, the considera- | by whom the benefits have been conferred tion may be love and affection entertained

had competent and independent advice in and for their better maintenance, support, conferring them. Rhodes v. Bate, L. R. 1st protection, and livelihood, but the deed here. Ch. 257. The rule is further stated, and I in was not a deed of gift. The consideration

think correctly, in the English note to recited therein was the cold sum of $10 and Hugein v. Basely, 2 Lead. Cas. Eq. 595, as was never paid. How could such a sacrifice follows: "The conduct of the party benefited by Mrs. Yordi benefit a dying husband? must be such as to sever the connection and it possible to suggest a rational or reason

to place him in the same circumstances in able motive on her part in dispossessing her which a mere stranger would have stood, self of her home that her husband had given giving him no advantage save only whatever her before their marriage? The unnatural- kindness or favor may have arisen out of the ness of the transaction suggests the predom- connection. As was said in a recent case: inating influence. To these two facts—that

"The wife should have had the benefit of a is, to the fact of a confidential relation and a full, free, and private preliminary conference want of consideration—let there be supple- with a competent lawyer or business man mented the fact that she first formed her who was employed and paid by her and in intention to make this deed during the con

whom she had confidence and who would be versation with her husband at their home. devoted to her interest and hers only.' Pironi about an hour before she signed the deel, v. Corrigan, 20 Atl. 2:27, 17 N. J. Eq. 135. and at that time her mind was in a state "The relation of confidence therefore exof fear. Plaintiff was asked: "Q. At the

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isting, the consideration mentioned in the time when you first formed your intention deed being untrue, the wife receiving no to convey this property back to Mr. Yordi, pecuniary advantage by the transfer, but, on what was the state of your mind with respect the contrary, losing her home, the husband to fear or absence of fear? A. I feared. I obtaining property for nothing and soon had fear. This fear must, I think, be con- transferring it as a gift to defendants, the nerter with the intention to make the deel fact that she formed her intention to deed in und with reference to it, and to no other an interview with her husband, and was at subject, and is not consistent with that state the time and when she signed the deed in a of mind which should exist with reference to mental state of fear, that Mr. Yordi emsuch a transaction. It is not in consonance ployed the notary who took her acknowledgwith a state of mind produced by honest ment, and the entire absence of independent persuasion or by any arguments addressed advice and that freedom of marital influence to the understanding or appeals to the affec- which should characterize every such act—all tion, and this state of mind formed a part taken together, would, under the law as I of the whole transaction. Within an hour interpret it, constitute undue influence. The

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facts of the case are as strong as, if not riage ceremony, was not material. No prestronger, than either Dolliver v. Dolliver, 94 sumption of undue influence would have Cal. 643, 30 Pac. 4, and Ross v. Conway, 92 arisen in favor of the husband if the deed be Cal. 637, 28 Pac. 785, and the Supreme Court regarded as having been delivered after the of this state in both cases held that the facts marriage. established undue influence.

3. On the direct examination Notary Lew“There is evidence in the case of declara- | is, who prepared the deed from plaintiff to tions by Mrs. Yordi to the defendants and her husband under the latter's direction, their brothers that may tend to show fairness testified that Yordi instructed him to prepare of the transfer, but such testimony, under a new deed similar to an old deed then bandour Code and the law of evidence, is not ed him. Upon cross-examination defendants entitled to much weight, especially when sought to bring out all that Yordi said to contradicted. It is entitled to but little the notary at that time. Plaintiff objected weight as against the uncontradicted facts unless it was limited to such parts of the above stated, constituting in themselves un- conversation as related to the preparation of due influence.

the deed by the notary, Lewis. The court “Plaintiff has proved the issues by a clear allowed the question, with leave to plaintiff preponderance of the evidence, and may pre- to move to strike out the answer. The witpare and present findings in accordance with ness answered that Yordi told him "that the this opinion. S. K. Dougherty, Judge. former deed made by him to Mrs Yordi “Dated March 28th, 1902.”

should not have been recorded, that it was We may here remark that, after plaintiff recorded by mistake, and now they were gohad conveyed the property to her husband, ing to change it, she was going to deed it he held the title until shortly before his back to him.” The court, on plaintiff's mo

, death, although he had previously deeded tion, struck out that part of the answer all his property to a corporation, the shares which referred to the recording of the forof which he gave his children, and plaintiff's mer deed. The ruling was correct. The andeed to him was not recorded until the day swer was not cross-examination as to matof his death. During this interval the chil- ters testified to by the witness in chief, was dren of Yordi showed considerable ill feel- | not made in plaintiff's presence. and, being towards plaintiff, which would have been sides, was self-serving. Appellants claim greatly increased had Yordi reconveyed the that it helped to establish one of the issues property to his wife. When, however, he presented by defendants' answer. It was found his life fast ebbing away, and that not competent to thus prove it. he was about to depart where his wife's

4. Upon her cross-examination by defendreproaches would not reach him, he deeded ants plaintiff, as a witness, was askell whethto his children and they withheld the deel er at any time after she had executed the from record and from her knowledge until deed of November 20, 1900, to her husband, his act was beyond recall. Under the cir- and prior to his death she had told the decumstances shown it is no unfair inference fendants or either of them that the property that Yordi obtained the deed with the secret in question was hers, or that she claimed it, purpose to convey title to his children and

or owned, or had any interest in it, to all of that the fact was withheld from plaintiff, which she answered "No." Upon the redileaving her to indulge her "confidence in her rect, plaintiff's counsel asked her, "What husband that he would give it [the property] was the reason for not doing so?" Defendback to her again," as she testified.

ants' objection was overruled, and the wit2. The deed from Yordi to plaintiff was ness answered that it would cause trouble executed and delivered on the day of their for her husband and herself; that “there marriage. The parties to the deed are thus would have been war" if she had made described: "Fred Yordi, of the county of known her claim to defendants; that she Sonoma, state of California, the party of the “had confidence in her husband that he first part, and Sarah Jane Yordi (wife), the would give it back to me (her) again.” It is party of the second part." Plaintiff was urged that the court erred and should have permitted to prove, over defendants' objec- disallowed the testimony and should have tion, and the court found, that the deed was stricken it out on defendants' motion because delivered before the marriage was actually the answers were but conclusions and opincelebrated, but on the same day. It is ions of the witness. But they had a direct claimed that the finding is not supported by relation to the matter brought out on the the evidence, because the deed conclusively cross-examination, and were intended to reproved that when delivered the grantee was move from the mind of the court any prejuthe grantor's wife, citing subdivision 2, $dicial inference it might have drawn from 1962, Code Civ. Proc. It seems to us that the witness' answers that she had not made defendants were in no wise prejudiced by known her claim to defendants during her this testimony if it he conceded that it was husband's last sickness. If it was material error to admit it. But we do not think it for defendants to show that plaintiff was siwas error. The question of the time of the lent as to her claim upon the property after delivery, whether before or after the mar- she had deeded it to her husband, she had

a right in reply to explain why she was silent.

5. Upon her direct examination plaintiff was asked the following question: "State what the consideration was for this deed which you executed to your husband.” She answered: “No consideration." She had previously testified that she had received nothing for executing the deed. It was objected that the question called for the conclusion of the witness as to a question of law, and that, in permitting her to answer, it was equivalent to allowing her to testify that "she did not hold the said deed on November 20, 1900, upon implied or constructire trust for the benefit of her husband." It was said in Hardison v. Davis, 131 Cal. 635, 63 Pac. 1005, where the right to make it similar inquiry arose :

* * Being in a position to know the ultimate fact, and appellant having the opportunity to cross-examine him (the witness), it was not improper for him to testify directly that there was no consider:ution.” The inference which appellants say might have been drawn from the answer is highly conjectural, and we think not warranted. The court manifestly ilccepted the answer as referring wholly to the money consideration.

6. It is also claimed that the demurrer to the second amended complaint should have been sustained. It is contended, first, that the general demurrer should have been sustained because the complaint "alleged that said deed of November 20, 1900, was obtained partly by means of intimidation and partly by means of undue influence, but does not set out the facts constituting the alleged intimidation or duress," citing Goodwin v. Goodwin, 59 Cal. 560; second, it is contended that if not obnoxious to a general demurrer the complaint was demurrable for uncertainty. The complaint alleges the marriage relation, plaintiff's ownership of the premises as her separate property; that said Yordi, "for the purpose of causing her (plaintiff] to convey to him [her husband] the said lot of land, without consideration, intimidated plaintiff, and exerted upon her the predominating influence which he then had over her by reason of his position as her husband, and used the complete confidence which she then and at all times, until his death, reposed in him, and thereby did then and there cause her, against her will and contrary to her wishes, to make, acknowledge, execute, and deliver to him a deed of conveyance of said lot of land, without consideration"; that “plaintiff made * * * and delivered the said deed to said Fred Yordi solely by reason of his said acts and conduct, and not freely or voluntarily"; that "said deed was prepared by a scrivener selected by said Fred Yordi,” and under his "personal direction"; that the property was of the value of $1,000; that plaintiff received "no pecuniary advantage in return for said deed, and said Yordi

91 P.-23

suffered no pecuniary damage therefor," and that "plaintiff had no independent advice in said transaction."

The point in objection to the complaint chiefly urged is that the particular acts constituting the alleged intimidation or undue influence or abuse of confidence are not set forth. This is not the case usually found in the reports where the instrument was executed by one enfeebled mentally or bodily, and easily susceptible for that reason to the operation of undue influences. It is a case where the effect of the alleged acts must be judged from circumstances difficult of precise affirmation. While, as our Supreme Court has held, marriage of itself alone will not give rise to a presumption of undue influence in a transaction such as this, the conjugal relation still is an important fact to be considered. Intimidation on the part of plaintiff's husband is alleged and the exertion of his predominating influence over her and taking advantage of the confidence reposed in him by her, and at a time when she was called upon to act without any independent advice, all of which resulted in his obtaining title to valuable property without consideration. The complaint contains sufficient facts to constitute a cause of action. Furthermore, uncertainty is not good ground in support of a general demurrer. Ward v. Clay, 82 Cal. 502, 505, 23 Pac. 50, 227. This court will not in all cases where error has been committed by the trial court in overruling demurrers for alleged ambiguity or uncertainty order a reversal of a judgment based upon a trial of the issues made by the complaint and the answer. Prejudicial error must appear. The party must have been misled to his prejudice, or the error otherwise appear injurious and not merely abstract, before cause for complaint can be predicated of its uncertainty or ambiguity. Gassen v. Bower, 72 Cal. 555, 14 Pac. 206; Alexander v. Central L. & M. Co., 104 Cal. 5:32, 38 Pac. 410. The answer specifically denies the averments of the complaint, and sets forth distinctly the facts upon which defendants relied at the trial. The evidence was directed to the issues thus framed and it is manifest from the record that defendants were not misled or injured by the failure of plaintiff to allege with greater particularity the facts upon which she relied. Conceding the rule of pleading to be as claimed by appellants, we are satisfied that the substantial rights of the parties were not affected by the alleged uncertainty in the complaint.

7. The opinion of the court was filed March 29, 1902, and findings of fact and judgment entered September 16, 1902. The second amended complaint was filed July 18th, to which answer was filed September 10, 1902. On June 9, 1902, plaintiff, after due notice, moved the court for leave to file amended complaint "to conform to the proof given at

weeks. The court refused this request, and fe

the trial thereof." This was objected to on findings on said September 15th, and final the grounds (1) that it would raise issues of judgment was entered September 16th. On fact other than those presented ly the orig. September 21 the court heard anel dermed inal complaint and answer thereto; (2) that defendants' motion to set aside the subuisno evidence had been received outside of the sion. It was said in Lee v. Murphy, 115 cal. issues presented by the pleadings on which 361, 51 Par. 1191, 9.1.7, that, while it is unthe cause was tried; (3) that it would be an usual to find it nersary to amend the (011)abuse of discretion to allow the proposeilplaint after a case has been sulmitied, there amendment. The objections were overruled is, under the power given by section 17% of** and amended complaint filed. The court the Code of Civil Proccilure, no limitation its made an order allowing defendants 10 days to the time before judgment entered when to plead to the amended complaint, and find- the power of the court (eases. It was also ings were deferred until the coming in of there said that this power to allow amendefendants' answer. Subsequently plaintif ments in the interest of justice is uniformly confessed the demurrer with leave to file a held to be within the discretion of the trial second amended complaint to conform to the court. proofs at the trial which the court ordered The only question, then, is: Did the court plaintiff to file within 10 days. On July 16th abuse its discretion in allowing the amendplaintiff served and filed her second amendel ment? And this question must be answered complaint to conform to the proof, and on in the negative unless the amended complaint July 23th defendants filed their demurrer introduced new issues substantially different thereto. This demurrer was called for hear- from those presented by the complaint uning on September 2, 1902, on which date de- der which the evidence was submitteil, and feudants applied for a postponement of two unless it appears that the rights of the de.

fendants were prejudiced by the amendment. heard and overruled the demurrer, allowing The evidence adduced on both sides seems to defendants five days to answer, and on Sep- | bave been addressed to the issue of undue intember 8th defendants answered the second | fluence, and there is no showing beyond the amended complaint. On September 10th opinion of one of the counsel for defendants, plaintiff gave notice that she would on Sep- | expressed in his affidavit, that, if the case tember 15th move the court to sign and file were reopened, important additional evidence the findings of fact and conclusions of law. would be produced to rebut plaintiff's case. On September 12th defendants served and So far as we can see, defendants had an opfiled a notice that they would on September portunity at the trial to rebut the evidence 22d move the court to set aside the submis- on which the amended complaint rests, and sion of the cause, and also for an order grant- | they seem to have availed themselves of the ing leave to defendants to introduce testi- opportunity. If they refrained, as they say mony in addition to that adduced at the trial they did, from cross-examining plaintiff, when and for a further order setting said cause

called as a witness, upon any point bearing for trial. The grounds of the motion were upon the issue of undue influence, they cannot (1) that plaintiff's second amended complaint now be heard to complain. The tendency of does not conform to the evidence; (2) that plaintiff's testimony was obvious, and that the issues presented by plaintiff's second she was not permitted to go into particulars amended complaint and defendants' answer as to what took place between her and her thereto differ from the issues presented in husband on November 20, 1900, was due to no the original complaint and defendant's an- reluctance on her part, but from a ruling of swer thereto; (3) that defendants desire to the court forbidding it. Defendants had and can adduce testimony, in addition to that then the opportunity they now say they depresented at the trial, tending to support sire to cross-examine her. In their motion the denials and allegations in their answer for a new trial neither surprise nor newly to plaintiff's second amended complaint. The discovered evidence is made a ground. If motion was made upon the affidavit of one the defendants' motion to set aside the subof defendants' counsel and upon the papers mission of the case had no merit, it was not and records in the case. On September 15th prejudicial error to file findings and enter plaintiff moved the court in accordance with judgment without waiting to hear such moher notice of September 10th, and thereupon tion, and it appears that when, subsequently, cefendants moved for a continuance of the the motion was denied no exception was hearing of said motion until September 220, taken. the day noticed for the hearing of the mo- We cannot discover that defendants have tion mentionell in their notice of September been derived of any substantial right by 12th, and until after the hearing of their the procedure complained of. said motion to set aside the submission of The judgment and order are affirmed. the cause. The court denied defendants motion for continuance and made and signed We concur: BURNETT, J.; HART, J.

(32 L'tah, 475)

that on the 21st day of August, 1903, he duly MARIONEAUX v. CUTLER, Governor, et al. presented to John C. Cutler, Governor, M. A.

Breeden, Attorney General, and C. S. Tingey, (Supreme Court of Utah. Aug. 1, 1907.)

Secretary of State, constituting the state 1. JUDGES--COMPENSATION-STATUTES - Cox- board of examiners of the state of Utah, STRUCTION-PROVISOS.

hereinafter called "respondents," said mileage Law's 1903, p. 71, c. 86, providing that the salaries of district judges should be fixed

account duly verified and itemized as proat $1.000 per annum, "provided" that no mile

vided by law, for allowance; that there age or expenses should be allowed, was not sub- after said respondents, acting as said board, ject to construction as though the proviso was refused to audit and allow said claim, upon omitted, because the contents thereof was not strictly a proper subject of a proviso: the in

the sole ground that respondents were adtent of the Legislature to restrict the "salary" vised and believed that there was no law of by cutting off mileages and expenses being ap- this state authorizing the allowance thereof, parent.

and therefore rejected the same. The peti2. STATUTES-SUBJECTS-SALARY OF JUDGES. tioner further alleges that there are sufficient Const. art. 8, § 20, fixed the salary of

funds in the state treasury to pay said claim, judges until otherwise provided by law at $3,000 per annum and mileage. Laws 1890, p. 301, c.

and that the same is justly due and payable. 121, allowed mileage to district judges, the act Upon substantially the foregoing allegations being entitled, "An act to provide for fixing the the petitioner prayed that a writ of mandate salaries and compensation of state and county officers," and Laws 1903, p. 71, c. 86, entitled,

issue requiring said respondents to allow "An act fixing salaries of judges of the dis- Said claim and to certify the same for pay. trict court," provided that their sa la ries should ment, as required by law, or to show cause be fixed at $1,000 per annum, provided that no

why they do not do so. Upon the applicamileage or expenses should be allowed. Held, that such act treated the mileage as a part of tion and prayer aforesaid, this court issued the salary, and was not therefore objectionable an alternative writ of mandate, to which reas containing a double subject.

spondents appeared liy filing both an answer 3. SAME-TITLE,

and a general demurrer. Laws 1903, p. 71, c. 86, entitled, "An act The question to be determined arises upon fixing the salaries of district judges," and providing that no mileage or expenses should be

the demurrer alone. There is no question allowed, was not objectionable for the reason raised respecting the sufficiency of the facts that the subject of the act was not clearly es- stated, if there be any law of this state pressed in the title.

which warrants the allowance of the claim [Ed. Note.-For cases in point, see Cent. Dig. presented to respondents. Is there such a vol. 44, Statutes, & 136.]

law? The answer to this question hinges 4. JUDGES-COMPENSATION-MILEAGE - STAT. upon the constitutional and statutory proviUTES-REPEAL BY IMPLICATION.

sions of this state respecting the salary or Law's 1903, p. 71, c. 86, entitled, "An act fixing the salaries of district judges," and fix

compensation and mileage allowable to dising such salary at $4,000, and expressly provid- trict julges during the period of time mening that no mileage or expenses should be al- tioned in the petition. To determine the queslowed, though containing no express provisions for repeal, repealed by implication Rev. St.

tion requires a review of the constitutional 1898, $ 2051, declaring that district judges and statutory provisions upon the subject. should receive mileage at the rate of eight cents for each mile actually and necessarily traveled

The initial step in this legislation is found in the performance of their official duties.

in section 20 of article 3 of the Constitution

of this state, which provides: "Until otherApplication of Thomas Marioneaux for a wise provided by law, the salaries of the writ of mandate against John C. Cutler, Supreme and district judges, shall be three Governor, and others, constituting the state

thousand dollars per annum, and mileage, board of examiners, to compel defendants to payable quarterly out of the state treasury." allow petitioner's claim as a district judge The Constitution became effective January 4, for mileage. Writ denied.

1896, and the first Legislature under the

Constitution, on April 5, 1396 (Laws 1896, Thomas Marioneaux, in pro. per. J. A.

p. 361, c. 124), passed an act fixing the salBreeden, for respondents.

aries of certain state and county officers,

and in that act also fixed the mileage to be FRICK, J. This is an original application allowed the district judges under the folto this court for a writ of mandate. The ap- lowing title: "An act to provide for fixing plicant, hereinafter designated "petitioner," the salaries and compensation of state and in substance alleges that from January, 1901, county officers." This act was evidently to January, 1905, he was the duly qualified passed to fix the salaries of the officers which and acting district judge of the Fifth judicial were not fixed in the Constitution, and to district of this state; that between April 1, limit the amount of mileage to be allowed to 1903. and Woveniber 18, 19901, he actually and the judges. The mileage was limited to eight neressarily traveled in the performance of cents a mile, and this was done because no his official duties a certain number of miles, amount or limit had been named in the Consetting forth the dates, distances, and stitution. This act, in respect to the mileage amounts, aggregating the sum of $116.10; of the district judges, was carried into the

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