Tissot v. Throckmorton

The objection, that a wife is improperly joined with the husband as party plaintiff, should be taken advantage of by demurrer, and comes too late on appeal. Where in an action on a promissory note, the defence sot up is, that the defendant executed' said note as the consideration for a deed from plaintiff for certain land, under false and fraudulent representations that plaintiff had an interest therein, the defendant, if he would avoid payment, must offer to surrender the deed to be cancelled, so that both parties could have been remitted to their original rights.

Appeal from the Superior Court of the city of San Francisco. This was an action by Paul Tissot and Natividad Haro, his wife, on a promissory note made by defendant to the wife during her marriage with her present husband. The defence set up is, that the defendant had purchased an interest in a tract of land known as the “ Protrero,” from Julius K. Rose, who had purchased of Natividad Haro. That at the time of Rose’s purchase, the title papers to the land had been lost, and the title was of no great value. That subsequently the original grant and other muniments of title were discovered, and it became certain that the grant would be confirmed, whereupon Natividad represented to defendant that the deed from her had been procured by fraud, and that she had received no consideration therefor, and that she had, and intended to assert, a claim to the land. That Rose was then absent from the State, and the defendant being influenced by the representations of Natividad, paid her $1250 in cash, and gave the note sued on, in consideration for a new deed, executed by Natividad. That subsequently defendant had discovered that the representations of Natividad were false and fraudulent, and that she had received and used the money paid by Rose for his deed, which was at that time fully equal to the value of the title to the land. On the trial, the defendant moved for a continuance, which was overruled. The jury found a verdict for plaintiff. Defendant moved for a new trial, on the ground of accident and surprise, etc., newly discovered evidence, etc., and insufficiency of the evidence to justify the verdict, etc., which was overruled, and defendant appealed.