
    [No. 6214.
    Decided August 25, 1906.]
    Martha A. Bluett et al., Appellants, v. Annie Wilce, Respondent.
      
    
    Actions — Legal ob Equitable — Juey Trial— Cancellation oe Deed eoe Fraud. An action is an equitable one, in which the parties are not entitled to a jury trial, where the complaint was to set aside a deed by reason of an alleged trust and for relief for fraud and violation of a trust, and where the issues involved a mortgage on premises in possession of the mortgagee, which mortgage had never been paid.
    Trial — Findings—Necessity. In an equity case in which the court dismisses the action, it is not error to refuse to make findings of fact.
    
      Cancellation of Instruments — Fraud—Evidence—Admissibility. In an action by a divorced -woman to set aside a deed alleged to have been made by her to a trustee, evidence offered by tbe plaintiff as to tbe treatment accorded ber by ber former busband is inadmissible.
    Same. In an action to recover land from an alleged trustee ex maleficio, it is not error to testify as to ber expenses upon tbe land, since tbe claim of tbe plaintiff required an accounting between tbe parties.
    Same — I-leading—Inconsistent Defenses. In such an action defenses are not inconsistent by reason of a prayer that tbe action be dismissed, followed by another to tbe effect that, if any of the plaintiffs are found to bave title to tbe property, an accounting be bad, and tbe defendant be allowed repayment of sums advanced and taxes paid, with interest.
    Appeal — Review—Findings—Cancellation of Deed — Evidence. Where tbe evidence for tbe cancellation of a deed is conflicting, and eleven years bad elapsed since tbe conveyance was made before commencement of tbe action, tbe findings of tbe trial court upholding tbe validity of tbe deed will not be disturbed on appeal; since tbe evidence must be clear and convincing to set aside a deed.
    Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered. November 29, 1905, in favor of the defendant, after a trial on the merits before- the court without a jury, in an action for the cancellation of a deed.
    Affirmed.
    
      L. H. Prather, for appellants.
    Graves, Kizer & Graves, for respondent.
    
      
       Reported in 86 Pac. 853.
    
   Dunbar, J.

The pleadings in this case are too lengthy for reproduction here. The essential allegations, omitting those in relation to the title to the homestead, which we do not consider important, are about as follows: That after the death of the plaintiff Martha A. Bluett’s husband, the said Martha was inexperienced in business matters, having always depended upon her husband to attend thereto- and for his advice in whatever she did in relation thereto-, and subse>quent to his death and up to the time of making the deed to defendant she depended upon the advice of others, and especially that of one Henry Boston, and of the defendant, in the management of her business affairs (the said Henry Bos-ton, about a year after the death of plaintiff’s husband, married the plaintiff, and they lived together as husband and wife for about seven years, when the plaintiff obtained a divorce from said Boston) ; that in the year 1892, after the death of said Martha’s husband, she had become indebted for provisions and other necessaries in the sum of about $200, and to defendant for a certain loan theretofore made by said defendant to her in the sum of $400, which latter indebtedness she had then secured by executing a mortgage on said land to said defendant, who then held said mortgage; that at said time it was represented to her by the said Henry Boston and the defendant, that the said creditors other than said defendant would probably attempt to enforce collection of their debts and subject said land to payment thereof; that at said time said land was very valuable and worth the sum of $2,000; that at said time a serious and disastrous financial panic was in existence, and for the time being said land could not he sold for any considerable per cent of its real value; but that it was then believed by her, and the said persons advised her, that said financial panic would soon pass by, and properties, including her said land, would again become available for paying off all of her said debts and leaving her a competency besides; that she was advised and persuaded by the said Henry Boston and the defendant that it would he proper and right for her to- convey said land by a proper deed of conveyance to the defendant, and for the defendant to hold the same in trust for her and the said heirs> the other plaintiffs in this ease, for the purpose of allowing plaintiff to handle the same and to sell and dispose of parts thereof to raise money for the payment of said debts, and to prevent said land from being sacrificed, etc., all of which advice and representations said plaintiff then believed and relied upon, and by reason of said reliance, and having no other reason or consideration, and believing and relying om the said promises of the defendant that she, the defendant, would hold the said deed in trust for her, the said plaintiff, and reconvey said land to her upon her demand therefor as she had promises to do, she made the conveyance aforesaid; that the said advice of defendant and her promise to hold said deed in trust for plaintiff and for her children, and her said promise i» reconvey said land -to said plaintiff were false and fraudulent, and were falsely and fraudulently made by the defendant for the purpose of getting possession of said land and holding the same for her own use and benefit without paying any consideration therefor; that thereafter, to wit, on thei — day of October, 1894, the defendant wrongfully and fraudulently claimed said deed to be an absolute conveyance of said land to her, and wrongfully and unlawfully took possession of all of said land, and ousted the plaintiff therefrom, and ever since has wrongfully and unlawfully held possession thereof; that the plaintiff, on the 1st day of November, 1894, made demand upon the defendant that she reeonvey said land to plaintiff, and the defendant then wrongfully and fraudulently refused to make said conveyance and ever since has so refused; alleged the*rental value of the land, and demanded judgment for the possession of said land, and for the sum of $500 damages for the wrongful detention thereof, and that said land be cleared of the eloud of said deed by the plaintiff Martha A. Bluett to the defendant.

The answer denied the confidential relations, representations, and advice, and all matters relating thereto; denied that the defendant promised to hold said land for plaintiff, to reconvey the same on demand of said Martha; admitted the execution and delivery of the deed, but denied that it was without consideration, or that there were any fraudulent representations or promises made in regard thereto; or that defendant wrongfully refused to convey the same; but alleged that she had at different times advanced money to the plaintiff in the aggregate of $800, which had never been paid exceptó by tbe conveyance of said land, and that said $800 was a liberal price for said land, and that the said Martha tiren deeded said land to defendant absolutely and in feei in payment of said indebtedness; that defendant, immediately u'pion the execution of said deed, entered into the full and exclusive possession of said land and ever since had been and now was in the open, and notorious, plossessiom! of the same under claim and color of title and good faith, adversely to plaintiff, and' had during all of said time paid all taxes legally assessed thereon. We think this is sufficient to present the case for discussion.

The case was tried without a jury, the court finding the issues in favor of the defendant and dismissing the action at plaintiff’s cost. When the case was called for trial the plaintiffs objected to its trial by the court without a jury, and requested the court to- call a, jurv to try the case, which objection was overruled and request denied by the court. At the dose of the trial of said case and before the court had signed the judgment herein, pjLaintiffs requested the court to make its findings of fact, which thei court refused. The errors, assigned are as follows: (1) The court erred in reifusing to set said case for trial as a jury case; and in sending the same to the equity department for trial as an equity case; (2) the court erred in overruling the plaintiff’s objection to the trial of thei case without a jury and in denying the plaintiffs’ request that thei court call a jury to try the causa; (3) the court erred in refusing plaintiffs’ request to make and sign findings of fact; (4) the court erred in refusing to allow the plaintiff, Mrs. Bluett, to testify as to her* husband’s treatment of her during their married life; (5) the court erred in allowing the defendant to testify as to her expenses on the land; (6) the court erred in finding for the defendant and in dismissing the action at plaintiffs’ cost.

It will be seen that the first and second assignments comprise the same claim, viz., that this is not an equitable action and that, therefore, the appellants were entitled to a trial by jury. We do not think that this daim is tenable. TMs ia not an action in ejectment for the possession of the land in question. The whole complaint shows that it is an action to cancel a deed by reason of an alleged trust having been violated, and for relief for fraud perpetrated by respondent in obtaining the deed to said land and in fraudulently refusing to recionvey, thereby violating her trust. There is no valid or subsisting interest in the property in question alleged, but the whole trend of the complaint is to establish a trust ex maleficio, an action which from its very nature is peculiarly within the province of a court of equity. And not only the complaint and the answer indicate that the action was of this character’, hut the testimony tends to show that the issues were purely equitable. There is involved in the issues, as shown by the testimony and by the pleadings, a mortgage on the land in question, which it is claimed that appellants have never paid nor offered to piay, and the respondent would therefore be entitled to possession until appellants had paid their indebtedness to defendant and an accounting had been had of the sums due.

This case is parallel with that of Rozell v. Yansychle, 11 Wash. 79, 39 Pac. 370, the main allegations in this case being identical with the main allegations there. In that case it was alleged that the plaintiff was of weak mind and unaccustomed to doing business; that he had been advised by a person who pretended to be his friend, to make a deed; that he had been overreached and thereby defrauded, and plaintiff asked to have the deed cancelled and to be reinstated in his land both as to possession ¿nd title. In this case as in that, if the allegations of the complaint are true^ appellants’ remedy would be in equity to set aside the deed on the ground that) the transaction raised a trust ex maleficio, and that the statute of limitations would not bar such action. In that case this court quoted from volume- 2 of Pomeroy’s Equity Jurisprudence* § 1053, where it is said:

“In general, whenever the legal title to property, real or personal, has been obtained through, actual fraud, misrepresentations, concealments, or through undue influence-, duress, taking advantage of one’s weakness or necessities* or through any other similar means or under any other similar circumstances which render it uneonscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust upon the property thus acquired in favor of the one who is truly and equitably entitled to the same; . . . and a court of equity has jurisdiction to reach the property either* in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it iu good faith and without notice acquires a higher right, and takes the property relieved from the trust.”

The determination that this case was- properly tried by the court disposes of the third assignment, that the court erred in refusing plaintiffs’ request to make and sign findings of fact. We think the objection to the testimony offered as to the treatment accorded the appellant Martha A. Bluett by her husband Henry Boston was properly sustained. It could not in any way have a tendency to throw light upon the questions at issue. Nor did the court err iu allowing the respondent to testify as to her expenses upon the land, for in case the court had taken the view of the transaction that was claimed for it by the appellants, an accounting would have been necessary to determine the rights between the parties, and the amount of expenses incurred by the respondent during the existence of the trust would have been a proper item for consideration. In this connection we' will notice the contention of the appellants that the answer of the respondent was inconsistent. It is true that in the prayer it is said that,

“If the court herein shall hold that any of said plaintiffs have any right, title or interest in -or to any part of said land, that an accounting he had of the various sums of money advanced by this defendant for the use and support of said plaintiffs herein, and of all taxes paid by this defendant on said land, and of all other sums dne this defendant from plaintiffs herein; that said interest be made subject to the payment of its just proportion of the amount found to' be due said defendant for the various sums of money, together .with interest thereon, advanced by said defendant to said plaintiffs.”

But the first prayer is that this action may be dismissed and that respondent gO' hence without day, and that she recover of plaintiffs her costs herein incurred. The fact that the respondent recognized the fact that the court might possibly place a different construction upon the transaction than that which was claimed by the respondent to be the true construetion, and that the respondent desired to protect her rights in case said construction was placed upon the transaction by the court, does not constitute an inconsistent defense.

This brings us to the main question of whether or not the allegations of the complaint were sustained by the appellants’ testimony. We have carefully examined the testimony and, in consideration of the fact that eleven years had intervened between the time when the deed of reconveyance was demanded by the appellants and the commencement of this action, which in itself is a suspicious circumstance entirely unexplained by the appellants, and in Consideration of the further well-established rule that evidence must be clear and convincing to overcome the plainly expressed intention of so solemn an instrument as a warranty deed, and in view of the conflicting character of the testimony which it would be useless to analyze at length here, we are of the opinion that the judgment of the court is sustained by the testimony, and it is therefore affirmed.

Mount, O. J., Boot, Eullerton, and Crow, JJ., concur.  