Nessen v. Nessen

SHENK, J.

This is an appeal by the plaintiff from a judgment in an action to set aside a conveyance of real property made to the defendant by the mother of the parties hereto. The mother, Thyra M. Nessen, had another son, Will Nessen, and a daughter, Anna Nelson.

[60]

Thyra M. Nessen died on August 10, 1030, at the age of seventy-five years. On June 7th preceding, she conveyed by deed of gift to her son, the defendant Andres P. Nessen, the only real property of which she was possessed, consisting of two lots with improvements situate in Alameda County, of the value of about $6,000. The present action was commenced on the sixteenth day of August, 1930, by Hans P. Nessen alone, to set aside and cancel said deed on the grounds that Thyra M. Nessen at the time she executed and delivered the conveyance was physically and mentally incapable of transacting business; that there was no consideration for the deed; and that the gift was not the voluntary act of the grantor but was induced solely by the undue influence and fraud of the defendant. The court found that although Thyra M. Nessen was for many- months prior to her death physically infirm and suffering from an incurable ' ailment which ultimately caused her death, she was nevertheless not mentally impaired, nor physically or mentally incapable of transacting business; that the deed of gift to her son was made voluntarily, of her own free will and accord, and without any fraud, duress, menace or undue influence exercised by the defendant. The court also found that in addition to the kinship and natural love and affection existing between the parties thereto the consideration for the deed was the agreement of the defendant to support, maintain and provide for his mother during the remainder of her life. The court specifically found that at the time of the execution and delivery of the deed Thyra M. Nessen was physically and mentally capable of understanding and appreciating the nature of her act and understood and appreciated the fact that thereby she divested herself of all right, title and interest in and to said property and that it thereupon became the property of the defendant; also specifically found that the defendant exercised no undue influence and committed no acts of fraud or duress in the premises. The court concluded that the defendant was the owner of the property and was entitled to have his title quieted. Judgment was entered accordingly.