Odell v. Moss

VAN DYKE, J.

This case has been here once before

(Odell

v.

Moss,

130 Cal. 352). On the former trial in the court below judgment went for the plaintiff, but on appeal this court reversed that judgment and remanded the cause for a new trial. The second trial resulted in a judgment for the defendant, and from this judgment and the order denying plaintiff a new trial the present appeal is prosecuted.

The action was brought to quiet title to a tract of land in San Joaquin County, near Stockton, called the “Lindstrom Tract,” and an undivided interest in another tract in said county, known as the “Moss Home Ranch.” The title relied upon by plaintiff was derived by deed bearing date November 27, 1889, from defendant Moss to said plaintiff, said Moss and plaintiff being brother and sister.

On or about the fourteenth day of September, 1897, by an order and decree of the superior court of San Joaquin County, duly made, said defendant Moss was adjudged an incompetent person, and said Thompson was thereupon appointed guardian of his person and estate. Thereafter, and before the commencement of this action, said guardian, on behalf of the said Moss, demanded of the plaintiff a reconveyance of said property, which was refused. The action was thereupon commenced by the plaintiff September 25, 1897, in which it

is

asked to have the title in the plaintiff to said premises quieted. The complaint is in the usual form, and the defendant by his said guardian answered thereto, denying the title of the plaintiff, and also filed a cross-complaint. It is averred in the cross-complaint that at the date of said deed from said Moss to plaintiff, and prior thereto, the said defendant Moss reposed especial confidence and trust in his sister, the plaintiff, and was in all things guided, controlled, and influenced by her;

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that for many years prior to the date of said deed he was addicted to the habit of drinking intoxicating liquors to excess, and by reason thereof was at said date an imbecile, and so weak in mind that he was incapable of earing for himself and managing his property, of all which the plaintiff well knew, and that he made said conveyance to his sister, said plaintiff, for the management and protection of his said property, and that she so received the same, and not otherwise.