McDonnell v. McDonnell

HALL, J.

This is an appeal from a judgment against defendant and the order of the court denying his motion for a new trial. Since the action was brought defendant died, and in due time an order was made substituting as defendants his executors, and later it appearing that before his death defendant had by deed conveyed the subject of the action to A. F. St. Sure, an order was made substituting him as defendant.

In this opinion, however, whenever we refer to the defendant we mean the original defendant.

[64]

The action was brought to quiet the title of plaintiff to a piece of real estate situate in Alameda county against the claim of defendant thereto. The complaint is substantially in the usual form of an action to quiet title, except that it appears therefrom that plaintiff deraigned his title from defendant through a deed of gift executed and delivered by defendant to plaintiff on the tenth day of December, 1903. A copy of the deed is attached to the complaint and made a part thereof.

Upon the trial of the issues presented by the pleadings the court found the facts in favor of plaintiff, and rendered judgment accordingly.

It is not pretended that defendant did not execute the deed set forth in plaintiff’s complaint, but the defense is made that he was procured to sign the same through the fraud and undue influence of plaintiff, while mentally incapacitated by illness, and in the belief that he was making a testamentary disposition of his property to his four nephews and two nieces share and share alike. The case hinges upon the question as to whether or not the findings against defendant upon these contentions are sustained by the evidence.

Plaintiff is a nephew of defendant, and had lived with him for many years. Plaintiff’s late wife (deceased before this transaction) had also lived with defendant for fifteen years before her marriage to plaintiff. Defendant was seventy-seven years of age and ill, and doubtless expected to die of such illness, though he in fact recovered. The deed was without consideration other than love and affection.

Conceding to the fullest extent that this is a case for the application of the rule stated by appellant, “that where a person, enfeebled in mind by disease or old age, is so placed as to be likely to be subjected to the influence of another, and makes a voluntary disposition of property in favor of that person, the courts require proof of the fact that the donor understood the nature of the act, and that it was not done through the influence of the donee, ’ ’ such proof was furnished. The most that can be said in favor of the contention of appellant is that there is a conflict in the evidence. There is evidence to the effect that the first suggestion that defendant should do anything about his property or his affairs came from his physician, who told defendant that he might die shortly and should attend to any business that he desired