Murphy v. Crowley

VAN DYKE, J., dissenting.

I dissent. The cases cited and relied upon in the majority opinion are clearly distinguishable from the one at bar. In those cases the party seeking relief was the owner of the real property in question, and either in possession or entitled to possession but for the fraudulent instruments sought to be set aside. The purpose of the actions, therefore, was either to quiet title as against these fraudulent instruments, or to

recover

possession, or be

restored to

possession, the fraud, as was said, being “a mere incident, and not the main purpose of the action. ’ ’■ Here there is nothing of that kind. The plaintiff was not the owner nor in possession of the real property either at the time the deeds complained of were executed or since. According to the allegations of her complaint, soon after the marriage of her father (by adoption) to the defendant Margaret E. Crowley, in July, 1890, “the plaintiff was driven from her home,” and there is nothing to show she has ever since set foot on the premises in question. She was neither owner nor entitled to the possession of the lands mentioned in the deeds, and if they had never been executed, or if now set aside, the plaintiff would not be entitled to possession. Upon the death of D. F. Crowley, according to •the allegations of plaintiff’s complaint (the deeds being set aside), the property in question belonged to his estate, and her interest therein is subject to administration of such estate. Crowley having left no minor children, his widow, the defendant Margaret E. Crowley, was entitled “to remain in ■possession of the homestead, of all the wearing apparel of the family, and of all the household furniture of the decedent,” and is also entitled to a reasonable provision for her support ■to he allowed by the court having charge of the settlement of the estate; and if no homestead0had been designated or selected, is entitled to have a homestead set apart to her, even from the separate property of the decedent. (Code Civ. Proc.,

*152

secs. 1464, 1465.) In the nature of things, therefore, this could not be an action to

recover

possession of real property, or to be

restored

to the possession. Until the deeds in question are set aside the plaintiff has no standing in court, as she has. neither title nor right of possession, and therefore could not maintain an action for the recovery of real property, even if this, were such. But it is apparent from the complaint that it is framed on the theory that the action is to set aside the conveyances in question on the ground of fraud and undue influence, and the allegations show clearly that the

gravamenoí

the action is of that character.

But “a conveyance or other contract with a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission, as provided in the chapter on rescission in this code.” (Civ. Code, sec. 39.)

In this case, it had not been declared, judicially or otherwise, that Daniel F. Crowley, deceased, was incompetent, or that he had not capacity to execute the conveyances in question. The effect of the deeds, therefore, was to convey the legal title to the premises in question, but subject to be rescinded on the grounds of fraud or undue influence

(People

v.

Blankenship,

52 Cal. 619 ;

People

v.

Noyo Lumber Co.,

99 Cal. 456 ;

Castro

v.

Geil,

110 Cal. 296

1

); and this action, from the facts stated in the complaint, is brought for that purpose, and clearly falls within section 338 (subd. 4), and not within the section relating to an action for the recovery of real property.

I think the demurrer was properly sustained and that the judgment should be affirmed.

Rehearing denied.

1

52 Am. St. Rep. 84 .