De La Nux v. Houghtailing

HUNT, Circuit Judge (after stating the facts as above). [1] To reform a written instrument upon the ground of fraud or mistake, the evidence must be clear and convincing. If the proofs are doubtful and unsatisfactory, and if the fraud alleged is not made verv clear, equity will not grant relief. Ivinson v. Hutton, 98 U. S. 79, 25 L. Ed. 66; Northwestern Mutual v. Nelson, 103 U. S. 549, 26 L. Ed. 436. Such is the rule under which we inquire whether the transaction here involved was entered into as intended by the parties interested, or whether, because of the fraudulent conduct of the son, the deed fails to express the precise intention of the parties thereto. Pomeroy’s Equity Jurisprudence, § 870. [2] The proof is convincing that during 20 years before the time of the trial Rebecca Houghtailing was more or less under the influence of liquor. Near neighbors testified that she drank to excess nearly every day, and spent a great deal of money at saloons; that often she was so drunk that she was taken home by neighbors. George, her son, saw but little of his mother until about the year 1900, when he went to work on a plantation not far from his mother’s home. It was in 1905 that George, in company with his mother, went to the office of an attorney, and there she signed the deed which has been ordered to be reformed. Rebecca stated on the trial that, after signing the deed, she asked her son not to record it, because she did not wish her two other sons to be displeased because of the gift of the property, which she believed was the homestead, that was conveyed to the children of George. According to her evidence it was about 1914 or 1915 that she learned that she had conveyed all her other property. Thereafter she engaged attorneys to take steps to have the deed corrected, but she first demanded of George that the deed should be reformed, inasmuch as he had committed a fraud upon her. Soon thereafter George drew up a form of letter and gave it to his mother to sign, wherein she discharged the counsel she had employed to proceed to have the deed corrected, and thereafter George persuaded her to give him a power [754] of attorney. It is also in evidence that, when she wrote the letter dismissing her attorneys, she was sick, and the suggestion that the letter be written came from her son George. After testifying that she remembered signing the deed, Rebecca said: “I was thinking this homestead was the only thing he [George] wanted. I did not think he had more in the deed, and the reason why I trusted this boy, and I really did, he had been working around this and that, and I trusted him; I trusted the boy; and I told him, ‘Well, you take your choice; this is the place you want, and you can have it;’ and it was all right. * * * I didn’t think the whole thing was going to be .put in this deed. Why should IT’ After explaining that she and her son went to the office of an attorney, she continued: “I went to the place where he told me; of course. I had a little drink in me; not only that, this child that I had, this boy 1 trusted, he was my eldest boy, and I trusted, and I would trust him again; I would trust him he wouldn’t do anything else to me like that, to me; I would give him this homestead; I told him the place was under mortgage, the Kalihi place was lunder mortgage, and ‘you will have to look after this;’ and he said, ‘Yes;’ and I don’t think I took the trouble to read the whole thing.” She also said that she had previously told George that he could take the homestead, and that she went down to execute the deed at his request, and that she did not intend to sign a deed giving the two grandchildren all her real property and her personal property, and had she known that the deed contained any such provision she would not have signed' it. At the time the deed was executed, the children of George were not living with Rebecca; but the children of another son were, and the evidence is that to one of them, Bathsheba, she was specially devoted. It is unnecessary to recapitulate more of the evidence, which, we believe, sustains in all respects the findings and conclusions of the trial judge. We have not overlooked the testimony of the attorney who drew the deed that at the time of the execution of the deed Rebecca was not under the influence of liquor, nor that of George, her son, who said that his mother wanted to turn all her property over to him, but that he did not wish her to do so, and finally decided that his children should get her property, and that he had not recorded the deed because his mother asked him not to. Assuming1 that at the time of the execution of the deed Rebecca was not drunk, still it is plain that she made the instrument at George’s solicitation, and did not understand that it conveyed all of her property. The testimony of George was not credited by the trial court; and a reading of it impresses us with the belief that, instead of being true to the natural obligations of a son to an unfortunate mother, he took advantage of her infirmity to violate the affectionate confidence she placed in him, and wantonly deceived her. [3,4] The question of laches remains. There is some evidence tending to show that Rebecca had knowledge of the fraud as far back as 1911; but there is also evidence that at that time, and thereafter up to the time of the appointment of her guardian, April 12, 1916, she was in such an enfeebled condition of mind as to excuse her in failing to in [755] stitute suit. As the present action is to reform a deed, and as it is proven that Rebecca, has been always in possession of the property, no rights of third parties having intervened since the deed under investigation was executed, it is proper to consider all the circumstances in concluding whether there has been a want of due diligence in failing to institute proceedings before they were actually begun. "Tlie question of laehes does not depend, as does the statute of limitations, upon the fact that a.certain definite time has elapsed since the cause of action accrued, but whether under all the circumstances of a particular case plaintiff is chargeable with a want of due diligence in failing to institute proceedings before she did.” Townsend v. Vanderwerker, 160 U. S. 171, 16 Sup. Ct. 258, 40 L. Ed. 383; Ruckman v. Cory, 129 U. S. 387, 9 Sup. Ct. 316, 32 L. Ed. 728; London and S. F. Bank v. Dexter Horton & Co., 126 Fed. 593, 61 C. C. A. 515; Rose v. Parker, 4 Haw. 593; McIntire v. Pryor, 173 U. S. 38, 19 Sup. Ct. 352, 43 L. Ed. 606. [5.6] The point that no demand upon the minors for reformation before the filing of suit was alleged or proved is not well taken; for, assuming, without conceding, that such demand was necessary, the evidence shows that there was a demand upon George, who was the natural guardian of his children. Moreover, as pointed out by the Supreme Court of the territory, the point was not contained in the specifications of error and is not a jurisdictional question. The decree is affirmed.