Andola v. Picott , 5 Idaho 27 ( 1896 )

HUSTON, J.

This is an appeal from a judgment of the-district court for Ada county in an action of ejectment. The facts as shown by the record are about as follows: On the eleventh day of April, 1891, the defendant Mary D. Picott, a married woman, was the owner and in possession of certain real estate situate in Ada county, about two and one-half miles from Boise City, in what is known as “Cottonwood Gulch,” the same being her separate property, and being about-acres in extent. This property the defendant Mary D. Picott had owned and occupied for nearly twenty years prior to said eleventh day of April, 1891. On the said eleventh day of April, 1891, said Mary D. Picott, by warranty deed, conveyed, said premises to the plaintiff A. B. Andola, for the expressed consideration in the deed of $6,000. It appears from the record that the actual consideration paid by the grantee was-$1,500. It appears that, at the time of the execution of such deed by the defendant Mary D. Picott, her husband, Joseph II. Picott, was not in the country. Mary D. Picott received the consideration of $1,500. On the sixth day of July, 1891„ Joseph H. Picott signed and acknowledged the deed, executed and delivered by his wife, to plaintiff Andola, on the 11th of April, 1891, and received therefor from the plaintiff Andola a consideration of $100. On the same day, the plaintiff gave to-said Joseph H. Picott a lease of said premises for six months from the first day of July, 1891. On the twenty-second day of January, 1892, plaintiff brought action in the probate court for Ada county to recover possession of said premises. There seems to have been a number of factions, motions, • dismissals, and other proceedings before the probate court, but, as they cut no figure in the consideration of the' question before us, we shall not notice them. The cause was finally heard before the district court of Ada county on the 21st of March, 1896, with a jury, and resulted in a verdict and judgment for plaintiffs.

The specifications of error, as the same appear in the transcript, are as follows: “(1) Insufficiency of the evidence to justify the verdict, and excepted to on the trial, in this: That the evidence is insufficient to show or prove that the deed (exhibit No. 1) is in any sense a legal and valid deed of conveyance to the land in question by the defendant Mary D. Picott, the evidence showing at the time that she was a married woman, and that the .land in question was her separate property at the time of said alleged conveyance by her; and, further, that the same was at said time occupied by her as a homestead. That the evidence shows without dispute that said exhibit No. 1 was signed by her, and acknowledged and delivered by her to the plaintiff Andola on the eleventh day of April, 1891, and was thereafter, to wit, on the sixth day of July, 1891, altered at the instance of the plaintiff Andola, and signed by Joseph H. Picott, and at said time acknowledged by him without the knowledge or consent of said Mary D. Picott, the grantor named, in said exhibit No. 1. That, there is no evidence that tends to show or prove that the plaintiff is the owner or entitled to the possession of the premises in question. Errors in law occurring at the trial, and excepted to by the defendants at the time: 1. That the verdict is against law; 2. That' the court erred in striking out defendants’ separate defense from their answer, and rejecting their evidence thereunder; 3. The court erred in giving plaintiffs’ said instruction to the jury, as asked for, over the defendants’ exception; 4. The court erred in refusing to give to the jury defendants’ said requests, marked Nos, 1" and 2, and to which refusal to so instruct the defendants excepted; 5. The court erred in refusing to permit tlie questions sought to be asked by defendants’ -counsel to the witnesses, Mary D. Picott, W. E. Borah, and J. B. Lyon, as set forth, and to which refusal exceptions were then and there taken; 6. The court erred in striking out all the testimony of the defendant Mary I). Picott, to the effect that exhibit No. 1 was given by her to secure the payment of ■$1,500 on town lots, and to which defendants then and there ■excepted. The above and foregoing statement on motion for a new trial, presented by the defendants’ counsel, is hereby .settled and allowed by me in accordance with the stipulation ■extending the time therefor under the statute, now on file in the above-entitled action. Settlement made over plaintiffs’ objection as to form and sufficiency of statement.”

These are the specifications of error as they appear in the transcript. TJpon the argument before this court, and in their brief, counsel for appellants have not followed very closely ■either the one or the other. However, we will endeavor to get ■at the points made by appellants, and pass upon them. In their answer to plaintiffs’ complaint, defendants set up various-•defenses. All the material allegations of the complaint are ■denied. Then follows an elaborate and extensive series of allegations, which may be summarized as follows: The defendant Mary D. Picott avers that on or about April 11, 1891, the plaintiff Andola, “for the purpose of deceiving, overreaching, -and defrauding the said defendant Mary D. Picott out of the •ownership and possession of said property, etc., solicited said Mary D. Picott to accept a loan for the sum of $1,500 from .said plaintiff Andola,” for a reasonable period of time, the period of time not being mentioned. The said plaintiff then ■and there falsely and fraudulently represented to the said defendant Mary D. Picott that she could pay said money back whenever it suited her convenience so to do. The said plaintiff then and there falsely and fraudulently stated to the defendant Mary D. Picott that all he wanted was the said defendants’ mortgage on certain town lots, which she owned in Boise City, to secure its payment. This defense is elongated •and elaborated over ten or twelve closely printed pages of the transcript. In the answer, the defendants offer to repay to plaintiff the $1,500 alleged to be the true consideration for the deed aforesaid, together with interest thereon. Thereupon the plaintiffs file their written acceptance of such offer, and the defendants decline and refuse to make good the offer or tender set up in their answer. The plaintiffs thereupon move the court to strike out so much of the answer of defendants as sets np an affirmative defense by way of allegations of fraud in the procuration of said deed, which motion was granted by the court. And this is the first error alleged.

There was no error in granting this motion. The refusal of defendants to stand by and make good their offer made on their answer was a palpable admission of the utter want of 'bona fides or equity in their contention. TJnder the rules of practice recognized in this jurisdiction, defendants had set up an equitable defense to the action of ejectment. To say nothing of the incredible character of the statements of defendants, by which they seek not only to change a deed absolute on its face into a mortgage, but to also change the location and character of the real estate claimed to have been encumbered, the order of the court was proper.

It is claimed that Joseph H. Picott was induced to sign the deed while in a state of intoxication; but nothing of this kind is claimed or intimated on the part of the defendant, Mary D. Picott. On the contrary, it is made apparent from the record that Mary D. is far more than ordinarily sharp in matters of 'business. It is an elementary rule of equity that a party seeking relief in a court of equity must come with clean hands, and this rule is particularly applicable to a case where one seeks to set aside his solemn deed by parol testimony. But, evidently, the defendants or their counsel intended to meet this rule by making a tender of the amount they had received, or a part of it; but when the same (although a less amount than what was shown to have been paid by plaintiff) was accepted by plaintiffs, and the defendants positively refused to-make their offer good, then it was the duty of the court not only to strike out the equitable defense, but the whole answer. The right of defendants to set up this defense — this equitable defense — to an action of ejectment must be conceded; but a condition precedent to any relief either at law or in equity is-the restoration of the consideration. This principle is so elementary that it is surprising that it should have been overlooked by counsel for defendants.

The multitudinous character of the defenses set up in this case would almost persuade us that counsel aré seeking to entertain the court with an exhibition of skill in the art of Isaac Walton.

It is claimed, in the first instance, that the deed from the defendant Mary D. Picott is void, because it was not signed at the time of its execution and delivery by her husband. This assumption is not supported by any principle of law, equity, or common honesty. It appears from the record that on the eleventh day of April, 1891, the defendant Mary D. Picott sold and conveyed to the plaintiff Andola the property in dispute, for a consideration of $1,500, the receipt of which at the time is acknowledged, and is not now denied. At the time of the sale, the defendant Joseph H. Picott, the husband of Mary D., was not in the country, as appears from the record. That it was the intention and understanding of the parties that on his return he should perfect the conveyance by signing the deed of Mary D., his wife, is justly and fairly inferable. That he should have exacted from the plaintiff an obolus of $100 is characteristic of and in keeping with all of the proceedings of the defendants in this case. In the face of this record, to claim that the deed of Mary D. Picott was void db initio is an assumption that lacks the support of any rule of law or equity or any principle of common honesty.

In the second place, it is claimed that the deed was given and intended to operate as a mortgage, not upon the premises described therein, but upon certain town lots in Boise City. This contention is unsupported by any evidence except the testimony of the defendant Mary 1). Picott, and is contradicted, not only by its own absurdity, but by the testimony of various witnesses, besides the record of the acknowledgment by said Mary D. Besides, while it is permissible to show by parol that a deed absolute on its face was given and intended to operate as a mortgage, we have not been shown, nor do we ilriuk it exists outside the imagination of counsel, a case where it has been held permissible for the court to not only change the character of the conveyance by incorporating therein a defeasance, but to also change the location and character of the property. The tergiversations of the defendant Joseph H. Pieott in trying to deny his signature, without incurring the pains and penalties of perjury, are as suggestive of the want of lona fides in this defense as they are repellant to moral sense. “He who asks- equity must do equity.” The. equity presented by the defendants, as shown in their answer, is to the effect that they should have a return of the property they honestly and fairly sold and conveyed to plaintiff, and at the same time retain the consideration they admit having received therefor; and this upon their unsupported testimony to a state of facts too utterly absurd, even were they not overwhelmingly contradicted, to entitle them to any serious consideration.

The only error the district court committed, in our opinion, was in not striking out the whole answer, and giving plaintiff judgment on the pleadings. As this was not moved by plaintiff, the court was, of course, excusable for not suggesting it. The judgment of the district court is affirmed, with costs.

Morgan, C. J., and Sullivan, J., concur.