Shurger v. Demmel

PEEK, J.

Defendants appeal from an adverse judgment in an action instituted by plaintiff to have two deeds can-celled; one, a deed purported to have been made by her to her son, John J. Demmel, and a second deed from John to himself and Elizabeth, his wife.

The complaint is in two counts. The first cause sets forth certain alleged fraudulent representations made by John to plaintiff to obtain the deed from her. The second cause alleges that at all times therein plaintiff was the owner of the real property in question; that defendants claim an interest in the property adverse to her; that the claim is false and fraudulent and based upon a forged deed dated July 31, 1943; that she did not make or acknowledge the deed. By reference plaintiff includes the allegations of portions of the first cause that Elizabeth accepted delivery of the deed to John and herself with full knowledge of all of the facts surrounding the acquisition of title by John; that defendants

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concealed the nature of the transfer from her to John; that defendants advised her she was the owner; that when she discovered the true facts in February, 1953, she demanded the restoration of the premises by reconveyance, but that the defendants failed and refused to do so.

Defendants’ answer denies generally all of the material allegations of the complaint and affirmatively alleges laches. By amendment thereto they allege that the cause is barred by section 338, subsection 4, of the Code of Civil Procedure.

. The record shows that at the time of trial plaintiff, who was born in Hungary, was 82 years of age and John, her only living child, was 61. A daughter, who was also born of her first marriage, had died many years before. Her second husband died in 1942, leaving her a life estate in the home where she was then living. The property which is the subject of - this action was improved by her with a dwelling house in 1921. Except for a period of approximately six years, from 1932 to 1938, John and Elizabeth have continually resided therein. For the first few years of their occupancy, defendants paid plaintiff $35 per month for rent which was thereafter reduced to $25, which sum the defendants continued to pay up to the time this action was filed. During all of this time plaintiff paid the property taxes, the fire insurance premiums and the water bills. She and John had always been on friendly terms and she had reposed faith and trust in him. For safekeeping, she gave him all of her personal papers which included her deed to the property, a trust agreement between herself and a bank and her will which was dated in 1936. In 1940, at John’s suggestion, she consulted Attorney H. N. Mitchell who thereafter represented her in certain legal matters involving the estate of a brother. According to her testimony, she never consulted Mitchell again and did not visit his office in 1943.