The record-union., 1891-04-01

and now is the owner of and entitled to
the possession of an undivided one-half
part or share of the lot of land described
! IN the deed with the improvements
LGereon: ANA further that conveyance
| from William Hillenbrand of the same
! property by deed executed on the Dist
OF January, 1889, to his wife, Anna Hill
/ Ienbrand, was executed in fraud of the
| rights of the plaintiff, and is null and
1 void. 1t was further ordered and ad-
! Judged that the plaintiff be let into the
! quiet possession, occupation and enjoy
/ ment of the undivided one-half part or
I share OF the lot Of land and premises de-
scribed in the judgment, and that the
! plaintiff recover his costs. From that
/ Judgment and an order denying a new
! trial this appeal is taken.
! 1t appears from the evidence on behalf
of the plaintiff, that he was at the time
! he signed and acknowledged the deed to
/ William Hillenbrand, 4 person advanced
/ In years, and of great weakness of mind,
although not amounting to diSQualitica-
| ton; that he made the deed without ade-
/ quate consideration, and without inde-
/ pendent advice; that he was induced to
make that instrument by an imposition
! practiced upon him on the part of DR..
| Schmitz, the father Of Anna HiIlenbrand,
| who was the plaintiffs attending physi-
/ clan; in this that klose was informed by
the doctor that he was dangerously sick.
and that it would be better in order not
to retard the, building of a house on the
| lot conveyed, which was then being
erected by William Hillenbrand and
hiose jointly; that he, Klose, should ex-
ecute deed to Hillenbrand of Klose's
interest III the property, but that this in
strument should have included in it a
clause that it was not to go
into effect unless klose should die
from his then illness, and should not
be delivered or go into effect until after
his death from such illness. But without
any authority from Klose. after Schmidt
had obtained the deed in this way, Hillen-
brand got possession of it and placed it
upon record. After Klose found this out,
he was uneasy and asked to look at it,
so that he could have it examined by
| friend, presumably to see if his
wishes had been carried out as promised.
lie was put off, however, from time TO
| time, by the promises of Hiilenbrand to
deal fairly with him and in good faith
carry out the original design as under
stood by Klose, viz; that if he got well
from the illness, for which the father of
Mrs. Hillenbrand was treating him, the
deed should be destroyed.
But so far from drawing the deed as he
/ agreed to do, OF delivering it as he prom
I lsed, the physician of Klose violated both
his agreements, with the knowledge and
connivance of Hillenbrand and wife.
4AO dtCCiNSu asiLt cOuutIlilg Ola man
brought this action after he found that SO
far from keeping the promises made to
hlm, these parties, bent on preserving
their unjust advantage, had fully conSum-
mated 1t, as they supposed, by Hillen-
brand conveying the property to his wife
1t is first contende6 for the appellants
that the evidence is insufficient to support
the findings. We think that which was
introduced by the plaintiff is ample for
tnat purpose.
It is next contended that the complaint
does not allege that the deed was to
contain clause that it was not to go into
effect unless the plaintiff died from his
then illness, but the pleading only alleges
that the clause was to be to
the effect that the deed was not to
go into effect until after the death of
klose without reference to whether
he died from his then illness or not
That, therefore, the evidence and findings
are conflicting with the case made in the
complaint. a careful examination of the
pleading in question does not bear out
this contention. 1t is manifest from the
whole language employed, although the
same is not couched in the clearest terms
for that purpose, that the pleading as to
that matter conforms to- the findings and
evidence.
1t is alleged in the complaint, and found
to be fact by the finding, ''That said
William Hillenbrand at once took pos
session of said deed from the hands of
said Schmitz the DOCTOR, and caused the
same to be recorded by said Schmitz in
the office of the County Recorder of the
City and County of San Francisco, as
though the same had been delivered to
him by this plaintiff, when, in truth and
III fact, the said deed has never been de-
livered TO said Hillenbgapd.'
The argument made in this connection
by the appellants, for reversal of the
Judgment and order, seems to be that this
finding shows that the deed was delivered
by Schmitz, and that as he had the power
confided to him to deliver it condition
ally, that although he used this power by
violating his promise to the plaintiff,
yet it was legal delivery, and hence the
finding that there was no delivery con-
tiicts with the fact, which states
the possession taken by Hillen-
brand from Schmitz.,r In other words,
although Schnlitz violated his promise
not to deliver, yet this did not affect the
delivery so far as Hillenbrand was con-
ceTned.
We cannot conceive how such an act
can accomplish the legal result claimed.
lBrison VS.. Brison, 70 Cal. 527: G. c., See
ton 1879. The allegation of the pleading
and the finding show no authorized
delivery 10 Hillenbrand, but possession
and q recording of the deed fraudulentIy
obtained and made.
But ii we were to concede the specific
points made by the appellants involving
the pleadings and findings as being we'll
taken, the judgment and order should
not be reversed as the pleadings, findings
and evidence all show this much at the
very least, viz: That Klose made a deed
that he did not intend to make; that he
was old, sick, and of impaired intellect !;
that the instrument was made without
any adequate consideration and without
independent advice, but to the contrary
by intended and deceptive advice. and
that he would have moved to set it aside
in seasonable time, but for the promises
made him by William Hillenbrand. and
that as soon as he unwillingly discovered
that he had been deceived by those he
had reason most to trust he sought
through the courts to obtain redress.
Under this state of facts as we under
stand the rule in such cases, laid down in
Richards VS.. Bonner az Cal. 2l0-2lD, it
would seem that no prejudicial error has
been committed, and that the Judgment
and order should be affirmed.
FooTE, G..
We concur:
VANCLIEF, c.,
BELCHER, G.
THE COURT.
For the reasons given in the foregoing
itld npln