Wade v. Busby

GRIFFIN, J.

Judgment was entered for defendant after sustaining a demurrer to plaintiff’s complaint without leave to amend. Plaintiff appealed.

The complaint is based upon an alleged cause of action to set aside a conveyance and quiet title in one count and in a second count for an accounting. The first count alleges generally that on October 17, 1938, decedent Mary E. Busby was the owner of a certain parcel of property in Upland and on that date defendant Blanche L. Busby did, while Mary E. Busby was “incompetent by reason of her extreme age and infirmity and mental condition,” cause and induce her to execute a deed to the property described to one Katherine Puehler, without consideration, and that defendant thereupon caused Katherine Puehler to execute a deed of the property on October 18, 1938, to Mary Busby and Blanche L. Busby, as

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joint tenants; that at the time the deeds were executed and up to the time of her death, Mary E. Busby was mentally and physically incompetent; and that therefore these deeds should be set aside and the property declared to be a part of the assets of the estate of Mary E. Busby, deceased. The second count alleges that defendant should account for rentals collected.

Mary E. Busby died on June 2, 1943. This action was filed on December 20, 1943, approximately 4 years and 10 months after the execution of the joint tenancy deed.

Defendant demurred to plaintiff’s complaint on four separate grounds, which included (1) that the complaint did not state facts sufficient to constitute a cause of action; (2) that the cause of action in the first count was barred by the provisions of subdivision 4, section 338 of the Code of Civil Procedure, and that the second cause of action set forth was barred by section 337 thereof. The demurrer does not recite that the first cause of action based upon undue influence is barred by section 343 of the Code of Civil Procedure, but does recite that in 1940 a similar complaint was filed alleging the same “fraud and undue influence and mistake,” and that such complaint was dismissed in December, 1943, for lack of prosecution. Subdivision 4 of section 338 of the Code of Civil Procedure has no application to a proceeding to set aside a deed upon the ground of undue influence. Such an action is governed by the four-year period prescribed in section 343.