Hemenway

This action was brought to cancel a deed to certain real property, made by plaintiff’s testate, George W. Proctor, to defendant. Judgment passed for defendant from which and from the order denying her motion for a new trial plaintiff appeals.

Plaintiff was duly appointed administratrix of the estate of said deceased, with the will annexed, and brings the action as such administratrix. She alleges in her amended complaint : That on May 5, 1904, the said Proctor was the owner of certain described real property situated in Kings county; that prior thereto, to wit, on July 29, 1903, the said Proctor executed and delivered to defendant his power of attorney “to sell or negotiate for sale or rent,” the said lands above referred to and also certain other lands situated in San Luis Obispo county; that said power of attorney “was in full force and effect on said 5th day of May, 1904.” The foregoing facts are found by the court to be true.

It is then alleged that on said May 5, 1904, said Proctor conveyed to defendant by an instrument, purporting to be executed by him, the said Kings county land in which said deed is also described the said land situated in San Luis Obispo county; that on…

Petition for rehearing. The principal ground upon which we are asked to open the case is that it falls within the rule laid down by this court in Nobles v. Hutton, 7 Cal. App. 14 , [ 93 Pac. 289 ], where the court said: “It is a well established principle that persons standing in a confidential relation toward others cannot entitle themselves to hold benefits which others may have conferred upon them, unless they can show to the satisfaction of the court that the person by whom the benefits have been conferred had independent advice in conferring them.” (Citing, also, Yordi v. Yordi, 6 Cal. App. 20 , [ 91 Pac. 348 ].) It was said in Robins v. Hope, 57 Cal. 493 , 497: "The phrases ‘ confidential relation’ and ‘fiduciary relation’ seem to be used by the courts and law writers as convertible terms. It is á peculiar relation which undoubtedly exists between client and attorney, principal and agent, principal and surety, landlord and tenant, parent and child, guardian and ward, ancestor and heir, husband and wife (naming some others). In these and the like cases the law, in order to prevent undue advantage from the unlimited confidence, affection, or sense of duty which the relation…