Hudemann v. Dodson

CURTIS, J.

This is an appeal from a judgment setting aside three certain deeds and an assignment of mortgage. All of said instruments bear date April 16, 1929, and were executed by Charles A. C. Hudemann in favor of D. D. Dodson, the defendant herein. Thereafter, and on the seventeenth day of May, 1929, the said Charles A. C. Hudemann died, leaving a last will and testament in which F. H. Hudemann was named as executor, and on June 14, 1929, said will was admitted to. probate and F. H. Hudemann was appointed executor of the last will of Charles A. C. Hudemann, deceased. In that capacity the plaintiff instituted this action to set aside said three deeds and said assignment of mortgage on the grounds of want of consideration, undue influence and nondelivery. The answer of the defendant denied these charges. The case was tried by the court without a jury. Findings of fact were made by the trial court, which were in favor of the plaintiff and against the defendant upon all of the issues made by the pleadings. Upon these findings the court entered the judgment from which this appeal is taken.

[4]

Practically the sole contention of the appellant is that the findings are not supported by the evidence. The facts are not complicated. The deceased lived at Cottonwood, Shasta County, located about sixteen miles north of Red Bluff, the county seat of Tehama County. He owned various small pieces of property some of which were in Cottonwood and others were in Red Bluff. The defendant who resided at Red Bluff had for seven or eight years known the deceased and had looked after his property in Red Bluff, collected the rents, attended to the repairs, and paid the insurance and taxes on the Red Bluff property, during which time he had effected two sales of real property belonging to the deceased. At the time of the execution of said deeds and assignment the deceased was seventy-three years of age and was sick in mind and body. About a month prior to the execution of said papers on account of his enfeebled condition he had been taken from his home at Cottonwood and placed in a hospital at Red Bluff, and was in said hospital at the time he signed said deeds and assignment. While in said hospital he was visited by the defendant two or three times a week. According to the testimony of the defendant on the occasion of one of these visits the deceased made an offer to sell to the defendant all of deceased’s property, and that following this offer they came to an agreement by the terms of which the deceased was to convey to defendant all of the former’s property and the defendant was to pay deceased the sum of $2'00 per year, payable quarterly as long as the deceased should live; that the defendant sent for his attorney, W. A. Fish, who prepared the three deeds and the assignment of mortgage, took decedent’s acknowledgment thereto and thereafter deposited them with the Bank of Tehama County at Red Bluff to be delivered to defendant upon the death of the deceased. The defendant also testified that following the execution of the three deeds and assignment of mortgage, he executed a promissory note in favor of the deceased for the payment of $50 every three months during the decedent’s lifetime. The evidence further shows that some ten days after the events just related the deceased, his health apparently having improved, was taken by the defendant to his home in Cottonwood, where he died on May 17, 1929, about three weeks after leaving the hospital. After his death the three deeds, the