Butler v. Hyland

Temple, C. — Plaintiff appeals from a judgment of nonsuit, and from an order refusing a new trial.

[579]Plaintiff’s father, as she avers, died June 5, 1858, leaving, as heirs, plaintiff, aged eight years, and her brother, aged about fourteen. Her mother had previously died. Her father was the .owner, at the time of his death, of the lot in controversy. Just before her father’s death, her aunt, who was a widow with three children, the present defendants, came to live with her father on the lot in suit, and plaintiff became at once a member of her aunt’s family, and lived with her until her own marriage, in 1879.

While she was a minor, living with and. in the custody of her aunt, her aunt represented to her that her brother would get her property from her, and said if plaintiff would convey it to her she would hold it in trust for plaintiff. Upon this representation'and agreement, she conveyed her right to her aunt; that by mistake the deed was made absolute in form, and purported to be made for a consideration of five hundred dollars; that she and her aunt were both ignorant of this fact; that she received nothing for the conveyance, and did not discover the mistake until after the death of her aunt, in 1885. She never demanded or received a deed from, her aunt, who remained in possession up to her death, and the defendants, who are the only descendants of her aunt, although fully aware of her rights, repudiate and deny them, and claim to be themselves the owners.

She sues to recover the property, for a conveyance, and for general relief.

The defendants do not deny the ownership of plaintiff’s father, nor the facts which show that plaintiff was his heir, but they deny the trust, and aver that the deed was in fact an absolute conveyance for a valuable consideration. They also plead the statute of limitations, and charge laches in the bringing of the suit.

At the trial, the plaintiff was the only witness examined. She testified that her father died June 5,1858, leaving herself and her brother as the only children, her [580]mother having died before; that shortly before her father’s death, her aunt came to live with her father upon the lot in suit, and after her father’s death they all continued to live there together. She said: “I continued to live with my aunt in the same house; my aunt took care of me, sent me to school, and I had no one else to provide for or look after me; but my uncle sometimes sent money to my aunt for me; I was received in and became a member of her family, and so continued until the time of my marriage, which took place April 80, 1879.....After my father’s death, when I was about sixteen years old, and while I was still living un- ' der my aunt’s care, ray brother tried to get me to sign a paper while I was visiting him, and I would n’t sign it, and when I got home I told my aunt what he wanted ■me to do; my aunt said, ‘I will fix it so he can’t get your property from you ’; the next day a notary called at the house, and I signed a paper; my aunt said, * I will hold your property for you’; I did not know what the paper was, and never discovered it until my aunt’s death, and a short while before this suit was brought, but I suppose it was read over to me before I signed it; my aunt gave me nothing, and I received nothing for signing the paper, and I was under age at the time.”