Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-02-24

in violation of the agreemet.. :" m
which it is urged that the r~esponaen lid
enter into the agreement in goo" tn
with the intention to keep tn ne.
The right to recover is also basgl Don
constructive fraud arising from the fact
the conveyance was executed while
the relation OF husband and wife existed
between the parties, such conveyance
being to the advantage of the respondent
and not 10 the advantage of the appellant.
IS to the first claim. the court found in
direct terms that it was not sustained by
the proofs. The facts relating to the di-
V0rcc proceedings are established by the
records in that action. The facts relied
upon 10y counsel for appellant other than
those shown by the record are taken al
most entirely from the testimony of ap-
reliant. An examination of the record
disclOses that nearly, if not all, material
points upon which appellant relies We're
,-,ntradicted or materially changed by
the testimony Of the respOndent-nOt
only as to the facts touching the violation
of the agreement ~ the respondent,
which 90 to her guof faith in making it.
itl1l / di>O O'lIl btat - vi iiIOAtAAtNS III
testimony of appellant upon the very
material point as to the reason and pur-
poses of the execution of the deed. This
court viii not under we'll established
rules, weigh the evidence or determine
the c~redibility of witnesses, and in cases
where the record, as in this, discloses a
substantial conflict in the evidence, will
allow the findings and judgment of the
trial court to stand.
Coming now to the question of con-
structive fraud, We find that our statute
provides, that either husband or wife
may enter into any contract, engagement
or transaction with the other, or with
any other person respecting property,
which either might enter into if unmar-
ried, subject in any contract. engagement,
or transaction between themselves, to
the general rules which control the &C
tons of persons occupying relations of
confidence and trust towards each other.
Gen. Stats. Sec. 5l7.
The general rule of equity regulating
dealings between parties occupying fidu-
ciary relations, or relations of trust and
confluence. Is wen knOWU. IL is Sdlu.
In this class of cases there is often to be
found some intermiXture of deceit, i'm
position. overreaching, unconscionable
a advantage, or other mark of direct and
positive fraud. But the principle on
which courts of equity act in regard
thereto stands independent of any such
ingredient upona motive Of general pub
lilo royi,C. onJ II iS Ieui~raI in CONN do
gree as a protection to the parties against
the effect of overweaning confidence and
self-delusion and the infirmities of hasty
and precipitate Judgment"
Story's Eq. Jurisp. Sec. 307.
1t is also said, The doctrine to be ex-
amined arises from the very conception
and existence Of a fiduciary relation,
While equity does not deny the posi-
bility of a valid transaction between the
two parties, yet because every iduciary
relation implies a condition of superior
ity held by one of the parties over the
other in every transaction between them
by which the superior party obtains q
possible benefit, equity raises a presump.
ton against its validity, and casts upor
that party the burden of proving a firm
atively its compliance with equitahl,
requisites. and thereby overcoming til,
? presumption"
Pomeroy's Eq. Jurisp. Sec. 956.
\ The foundation of this principle i
t based upon the fact that the law implie
= that II of the parties to the relation ha
o a superiority Y e the other, and that til
contract is to the advantage of the on
~presumptively superior. The relation
It itself often suggests in which of tn
parties this presumptive superiority rest
l. Thus the mere statement of "guardia
r and ward" parent and child or AT
n tOrney and client suggests the part,
4 The rules of the common law recos
e: nized the husband as the superior part
in the relation of husban3 and wife.
III Schouler's Domestic Relations, p
l. 10 81.
Whether or not our statute Intended
y adopt the ruiz of the common law in tn
class of cases under which the husbar
was recognized as the superior party
" the relation of husband and wife, it is n
- necessary to decide; if it does, then wit
out further showing must the c%ontentit
~ of the appellant fall and the judgment
~ sustained. Our statute regulating the d
nestle affairs in respect to the comm
nifty property recognizes the SUPERIOR
- of the husband in this relation. But a
Stunning, that, under the facts, the law re
ognizes the wife as the superior party
this relation, and applying the gene1
rule stated in Story (Story's Equity ]
r~isprudence, Sec. 323) based upon the re
sons Of the rule given by Story and POI
J.. eroy as above cited. that whenever con
dence is imposed and one party has it
his power in a secret manner for his oy
advantage to sacrifice those inters.
which he is bound to protect, he will Z
,ho be permitted to hold any such advanta,
then must the appellants case fall. T
trial court found in terms that the D;
$500 frao ho1 ron{aI 1o.I, ~xL1- -,-l