TWO WRONGS DON’T MAKE NO A “NO WRONG”

Birney v. Birney (1933) 217 Cal. 353

Procedural context: Plaintiff brought suit to establish trust and obtain return of securities delivered to defendant in defendant’s sole name. Trial court ruled in favor of plaintiff and the appellate court affirmed the trial court’s decision.


WHAT HAPPENED:

The plaintiff was a very wealthy man. The defendant was his daughter, who had been well educated, well-cared for and supported throughout her life by her father: "The family lived extravagantly and traveled extensively." (356). The properties owned by the family included former President Van Buren’s farm in New York (Lidenwald).

The wife and mother of the parties died in 1922. Plaintiff remarried in 1927. Unfortunately, that marriage turned out poorly. Defendant, who had done two years in law school at Yale, advised the plaintiff to transfer the bulk of his assets into defendant’s separate name to protect him from his "gold-digging" soon-to-be-exwife. The "plaintiff had great confidence in her legal and business ability, considering her one of the smartest women in the country. He had like confidence in her integrity." (356)

Plaintiff later asked for a return of his property. He obtained an arrest warrant for his daughter when he discovered that she would not return his property. The defendant fled California and traveled to New York, "Upon arriving in New York she learned that her father had procured a warrant for her arrest. She then telephoned him that if he had her arrested she would inform the authorities that he had committed perjury in his wife's maintenance suit in filing an affidavit to the effect that he was worth $6,000 only." (358)

The court further explained:

Defendant was thereafter brought back to San Francisco. At this time she made no claim that the bonds belonged to her, but on the contrary she made statements to certain persons that the bonds belonged to her father and she had taken them to protect him. Like statements were made to an officer of the National City Bank at its office in San Francisco. She also informed a friend of hers that she had her father's securities in her name and that she intended to keep them for herself. This evidence is ample to support the finding that plaintiff was the owner and entitled to the possession of the securities. Aside from this positive testimony that no gift of the bonds was ever made to defendant as she claimed, her conduct during the entire transaction is inconsistent with the idea that her father made a gift of the securities to her. It is hardly probable that her aged and infirm father would have stripped himself of everything he possessed. (358)

Just before the appellate court undertook to analyze the trial court decision, it made this aside, "We are not called upon to express any opinion as to the standard of filial conduct displayed by defendant and her sister toward their aged and indulgent parent. Suffice it to say that it is the tragedy of Lear, retold." (358)

The appellate court continued:

The further claim that plaintiff is not entitled to the relief sought for the reason that he does not come into a court of equity with clean hands is also without merit. At the time of the transaction plaintiff was over seventy-two years of age and infirm, he being a physical cripple. He had great confidence in defendant's legal ability and was guided by her advice. It was upon her constant urging that he sent the bonds to her for safekeeping, and his wife had no interest in the same; they being his separate property. It is true that in the action by his wife for separate maintenance and support plaintiff made an affidavit to the effect that he was worth only about the sum of $5,000, when as a matter of fact he owned the bonds in question. In the present suit he denied ever having advised his attorney to incorporate such a statement in the affidavit, and he testified that he signed all papers prepared by his attorney upon his advice without reading them. However this may be, defendant should not be permitted to take advantage of her own wrong. As was said in Chamberlain v. Chamberlain, 7 Cal. App. 634, 95 P. 659, one cannot lay a trap for another, secure his confidence, induce him to make a conveyance of his property in expectation that it will be returned, and thereafter retain the fruits of his perfidy on the ground that the donor too readily yielded to temptation to save himself at the possible expense of his creditors. The greater offense of the tempter overshadows and renders innocuous the weakness of the one of whom advantage is taken. Though a deed made for an improper purpose is unfairly procured through the undue influence of the grantee, in violation of a fiduciary relationship, abuse of confidence, oppression, or fraud, a court of equity will still grant relief to one in fault. Such relief will not be denied to a party least in fault against one who has led him into the act by a violation of confidence. They are not in equal wrong. Anderson v. Nelson, 83 Cal. App. 1, 256 P. 294. Under the circumstances plaintiff should not be denied the relief he seeks. (358)