Oliver v. Warren

CHIPMAN, P. J.

This is an action to set aside a certain deed made by J. K. Oliver, plaintiff’s intestate, to defendant, to the surface of the Table Mountain Alpha Gravel Placer Mining Claim, designated for convenience, the Alpha Mine, and for a reconveyance of the same to plaintiff. Defendant had judgment, from which and from the order denying his motion for a new trial, plaintiff appeals.

On April 9, 1906, plaintiff’s said intestate was the owner of the placer mining ground described in the complaint, and on that day executed and delivered to defendant a deed conveying to her “the surface of that certain placer mining claim [describing it] for and in consideration of the sum of $389.35 . . . and other valuable considerations. ” The grantor granted to the grantee “the use of the water from the tunnel upon said premises,” not, however, to interfere with mining the claim, reserving to himself all the minerals in the land and the right to remove the same, with the right of ingress

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and egress to and from said premises for mining purposes, and also reserving' certain pasturing privileges for his stock. The deed contained the following provision: “In consideration of this conveyance, the party of the second part- agrees that the party of the first part shall remain upon and occupy the cabin now occupied by him upon said premises, or a room in the dwelling-house to be constructed upon said premises by the party of the second part, and the party of the second part agrees to care for, board and suitably support and maintain the party of the first part for and during his natural life.”

It is averred in the complaint that at the time this conveyance was made the grantor was very old, being about eighty years of age, was infirm in body and mentally weak, and unable to understand the nature of the deed executed by him; that defendant knew of his said weakened condition, mentally and physically; “that said defendant wholly failed and refused to suitably support and maintain said J. K. Oliver during his natural life, and that said defendant has utterly failed and refused to comply with the terms ,and conditions of said deed and to carry out the provisions therein made, and that defendant made said promises without any intent on her part to perform the same.”