Klein v. Gregg

The failure of the plan or design of David Klein in executing and delivering the deeds in question to provide a home and support for his wife and. children -after his death is no legal ground for setting aside such deeds¡ unless such plan or de*471sign was disclosed to the plaintiff .and induced her to part with her interest in ¡the property. The statement that “she would be taken care of and be amply provided for under said deeds” is not a representation of an existing fact; nor of the legal effect of such deeds, but a mere opinion of her future wants as well as those of the -children, and the sufficiency of the means pror vided. Ii-er real complaint is, not that the property conveyed is insufficient of itself to provide a home and support for herself and his children, but that they do not receive what the deeds purport to convey, to-wit, a clear and unincumbered -title. One conveyance is made subject expressly to a mortgage of $3,000, and .there .is no allegation in the second amended petition that he promised or represented to her that he would pay or cause -to be paid such mortgage.

The -other conveyance -contained a covenant of warranty that the property is clear and unincumbered, .and plaintiff -avers that her husband represented to'her at the -time the deed was executed that the $2,500 mortgage was satisfied and no longer a lien on said property, whereas in fact it w.as unsatisfied of record; but she nowhere avers- that such representations were relied upon by her. Insurance Co. v. Reed, 33 O. S., 283.

There is no pretense -that .the misrepresentation was intentionally made, and if it be treated as a mistake there is no averment that it was mutual.

While the pleading contains the averment that “the consideration upon which she released her rights in said -property has wholly failed, and if said deeds are permitted to stand she will receive no part of the consideration upon which such release was founded and intended for her by her husband,” yet there is no averment that the consideration was wholly inadequate at the time -the deed was executed, September I9th, 1901. The presumption would rather be that it was adequate, else she would have begun her action long ago.

Her right of .action depends not upon .the failure to receive what her husband intended she should receive, although not expressed in the deed, but upon fraud, mistake -or undue influence

There was no intentional -misrepresentation of fact, nor undue influence, -and the only apparent ground for rescission is mis» *472take, which, to be available, must be mutual. If the facts .warrant, the plaintiff may amend accordingly.

Demurrer sustained.