Chew v. Chew

— The deed is made upon consideration of love and affection. The interest conveyed is simply that which defendant would he entitled to as dower.

husband and fraud.’ ’ Plaintiff seeks to avoid this deed on the ground of fraud and mistake. He claims that he did not know of the marriage of defendant to Hays until he filed his cross-petition in the divorce suit.

The evidence, we think, quite clearly shows that he was advised of such fact, not only hy the defendant, but by other parties.

Plaintiff testifies that at the time he executed the deed, defendant said Hays was dead. But it does not appear she said he was dead at the time of their marriage. His subsequent death would not affect tbeir legal status. It would not render valid the marriage of his wife while alive.

Hence, if sbe did say Hays was dead, when the deed was made, tbe declaration was of a fact not material. Nor does it appear tbat tbe plaintiff" relied upon, or was influenced by, that statement.

The burden of proof is upon tbe plaintiff, and be must establish bis case by a preponderance of testimony. After a careful review of all the evidence we cannot say that he has shown that he made the deed under misapprehension of any material fact.

Affirmed.