If we are going to protect gullible, foolish old men from women of the world who are "on the make," it seems to me that this result could better be accomplished by leaving these gullible, foolish old men just where their foolishness placed them. Men will continue to be gullible and give their property away, if they can come before a tenderhearted court and have these foolish transactions set aside.
I hold no brief for this woman. Perhaps she was "on the make." But I fail to find in the record any fiduciary relation between the parties, or any undue influence or taking advantage of his weakness by her. The parties met in 1923, just after appellant had been divorced from his first wife. He knew that Mrs. Kosten was still married. Nevertheless, he took her out to dinner, to shows, and for automobile rides, and proposed marriage to her. Whenever she was away, they corresponded. When she happened to be in Seattle, they would go out together, and he would present her with gifts. He wanted to marry her, but she didn't say yes, she didn't say no. Their relationship was always proper.
Appellant claims that he deeded this property to respondent because he was behind in payments due his former *Page 735 wife for support of their boy, and that respondent prevailed upon him to place the property in her name with the understanding that he could have it back whenever he wanted it. It is amazing that a man can come into a court of equity and ask for the return of property which he claims he transferred out of his name for the purpose of defeating a just obligation imposed upon him by another court of this state. But the facts do not square up with this contention. At the time in question, he had a ranch in Renton, which he retained. The property involved herein was not deeded to respondent for the purpose of defeating any right of his former wife in collecting support money. Furthermore, the fact that this designing woman only received part of his property does not speak very well for the influence which she exerted over him, nor does it indicate to any great extent his weakness.
The transfer of the property involved arose in this manner. In 1925, Mrs. Kosten divorced her husband. In October, 1928, after being absent from Seattle since 1926, she went to New York and married a man called Bowman. He left her in a month and started an annulment suit. She and Kausky had always corresponded. She wrote him from New York that she had lost the annulment suit, and that the cost of appeal would be prohibitive. He wrote her on June 22, 1929:
"Gee, I wonder if I couldn't help you, I would be willing to sell my place in town and get what I could for it. If you can put them off until you come out West and we will try to fix things up."
She replied on July 5, 1929:
"Saw my lawyer on Tuesday morning and learn that the attorney's fee without the cost of the high court (Appellate Division) would be over a thousand dollars, the court additional. He told me to consult another attorney as to costs, etc. But I think it is entirely out of the question. Thanks so much, friend-o-mine, for the kind offer: no, I wouldn't even dream of allowing you to make such a sacrifice. But if you still feel so inclined, when I come West, I am going to let you put the house in my name as you wanted to do about three years ago. I remember your saying there *Page 736 would be quite some for Jimmy with the ranch and your insurance. I know you will understand what it means to me writing you this way. You have always been such a dear friend."
She did not come to Seattle until October. The deed was executed October 24, 1929. He testified that she suggested that he turn it over to her, and that she would give it back to him whenever he wanted it. The trial judge questioned him as follows:
"Q. And I wish you would tell me the circumstances under which you gave this deed. Now, let me make clear to you before you answer. You didn't meet this woman in front of that bank and hand her a deed and she said `Thank you.' That is all? A. No. Q. That doesn't happen. You met her somewhere, talked to her, went to the bank, talked to the people in the bank, and the net result was, as you have told us, that she went one way with the deed and you went the other way probably back to your work? A. Yes. Q. Now, tell me about what happened on that day? A. Well, we talked about it before, if I remember right. We were walking along Fifth Avenue, — Oh, I think Seneca Street, when she asked me and I said, yes I would fix it up. Q. What did she ask you? A. She wanted to know if I would put it in her name, so the wife couldn't get any of it; and I don't know whether it was that day or the next day we went to the Washington Mutual. Q. Well, did nothing happen at the Washington Mutual? Did you speak to any man you knew? or what? A. No. Q. Tell me now, to the best of your memory. A. We went to the teller there and I says, `I would like to have this transferred to Mrs. Kosten.' I didn't say why or anything; and he made out the papers and that is all there is to it. She came out and I says, `Here, you better record this,' and I gave her 75 cents. That is all there was to it."
She left for China on January 10 or 11, 1930. On January 12, 1930, he wrote to her, enclosing the 1929 tax receipt. When she received it she wrote on February 27, 1930:
"When I went down to the American Consulate yesterday your two nice letters were there to greet me, along with . . . the tax bill of 1929 from the County Treasurer's office in Seattle on the nice little bungalow you made me a present of. You haven't any idea, old friend, when one is so far from home, especially in this heathen land, what a *Page 737 wonderful feeling it is to know that on the other side of the Pacific I have a little haven all my own. Do you want me to return this tax bill to you? or have you already paid it? It is a 1929."
He replied, April 4, 1930: "I am glad that you are happy when you think of your little house here."
In 1930, he was in litigation with a brother in the East concerning his mother's will. He wrote her November 11, 1930:
"Now if brother would have been like (he) should, I would have my share by now, maybe. Then I could send my little sweetheart fare to come back on. I would do anything in the world for you, especially if you would consent to marry me. Now, if when you are ready to come back and I haven't any money from the will yet, if you will have that deed made to my name so I can borrow enough to send to you so you can get back to the States."
Then in 1933 he met the "little widow." He wrote on February 15, 1933:
"It's been about three weeks ago since I saw a movie. I took a little widow that lives close to the little bungalow. She seemed to enjoy it very much and so did I. We may be going to one soon again."
Again he wrote on May 11, 1933:
"Yes, I get pretty lonesome out here and see quite a bit of the little widow. Don't be surprised if I send you an announcement. (ha ha). Yes, the taxes on the bungalow are all paid up to this year."
Again on August 12, 1933:
"I am about 4 payment behind to the Washington Mutual Bank. And I was wondering if you would give me title to it, as the government is going to make loans to people who are about toloose their homes. If I had title to it, I could do things better. Then this young lady that I am going with thinks that it is mine, and if she finds out otherwise it may cause trouble. As things are now, I am not able to make payments and pay taxes. I think you will understand."
And again on October 15th:
"Am wondering if I will hear from the last letter I wrote to you asking for the deed to the bungalow, as I am contemplating *Page 738 marriage and this widow lived nearby when we lived there and she knows that I am handling it, thinking that I still own it. And it may break our engagement if she finds out that I have not the deed to it."
There is nothing in the conduct of respondent which would indicate that this property was being held by her in trust. There is nothing in the conduct of appellant which would indicate such an arrangement. As far as he was concerned, the property was hers. When he wrote her on November 11, 1930, he stated that if he had the money he would send it to her for transportation back home, and only suggested she send the deed back in the event he didn't have sufficient funds when she was ready to return. But when he met the "little widow," he wanted it back. If respondent had returned the title to him, he most likely would have deeded it to the "little widow," and she would be before us defending an action by this gullible, foolish old man, instead of respondent.
I fail to find any clear, cogent, and convincing testimony in the record of any fraud or overreaching. This gullible man, in the hope that respondent would marry him, gave her a deed to this property. It was foolish of him to do so. But just because we may not approve of the transaction, that fact does not give us the right to make a new transaction for them.
The trial court said:
"It is said here that this woman through certain letters allowed or permitted this title to go into her name, and that it was a subterfuge to prevent his former wife, in the event that she sought to collect the unpaid separate (support) money installments; in the event that she undertook to enforce the decree. . . . I doubt if that is this case. I think that is an afterthought. If it were true, the plaintiff must fail here, of course."
I believe that the judgment should be affirmed.
June 13, 1947. Petition for rehearing denied. *Page 739