Simmons

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 449 The defendants' demurrer to the plaintiff's fourth amended complaint was sustained without leave to amend and judgment was entered in favor of defendants for costs. This appeal is from the judgment. The facts herein stated are taken from the allegations of the second cause of action stated in the complaint. "On and prior to the 8th day of August, 1910, plaintiff and defendant Dwight H. Miller were husband and wife. . . . The defendant Gustavus S. Miller is the son of plaintiff and said defendant Dwight H. Miller and the issue of their marriage and was born on the 12th day of April, 1896." The plaintiff was the owner of the real and personal property described in the agreement and in the deed of trust, which were made a part of the complaint and are hereinafter referred to, the same being the separate property of the plaintiff and "substantially all the property that plaintiff owned or was possessed of." Defendant Dwight H. Miller did not have, and knew that he did not have, any interest in or claim to any part of said property or the right…

In their petition for a rehearing, respondents urge “the fact that Gustavus S. Miller was a minor when the documents in question were executed precludes rescission thereof.” He was over twenty-five years of age when the fourth amended complaint was filed. It is not perceived, therefore, that he stands in any different position than would any other defendant who had innocently received a gift of property procured through the fraud of a third person. The question is whether an innocent recipient of a gift procured to be made through another’s fraud can set up his innocence as a defense to an action by the donor to rescind the gift on account of the fraud. No case has been cited or discovered in which such a defense has been upheld. The son has parted with nothing of value, nor do the contract and deed obligate him to do anything. In Antoszewshi v. City Plumbing Co., 185 Mich. 215 [ 151 N. W. 635 ], it was held that the plaintiff was entitled to the cancellation of a deed conveying property to a husband and wife, where the execution of the deed was induced by fraud of the husband, the wife not being a party to the fraud nor giving any consideration for the conveyance. In Martin v.…

The defendants’ demurrer to the plain-

tiff’s fourth amended complaint was sustained without leave to amend and judgment was entered in favor of defendants for costs. This appeal is from the judgment. The facts herein stated are taken from the allegations of the second cause of action stated in the complaint.

“On and prior to the 8th day of August, 1910, plaintiff and defendant Dwight H. Miller were husband and wife. . . . The defendant Gustavus S. Miller is the son of plaintiff and said defendant Dwight IT. Miller and the issue of their marriage and was born on the 12th day of April, 1896.” The plaintiff was the owner of the real and personal property described in the agreement and in the deed of trust, which were made a part of the complaint and are hereinafter referred to, the same being the separate property of the plaintiff and “substantially all the property that plaintiff owned or was possessed of.” Defendant Dwight IT. Miller did not have, and knew that he did not have, any interest in or claim to any part of said property or the right to manage or control the same.

‘ That on said 8th day of August, 1910, and prior thereto, the said Dwight H. Miller was desirous of…