Austin v. Burns

SCHMIDT, J., pro tem. The complaint in this case filed by respondent as the executrix of the estate of Thomas Murphy, deceased, was for cancellation of a deed purported to have been given by said Murphy in his lifetime to Alice Burns, the appellant herein, charging that the purported deed had been obtained from said Murphy by undue influence. After hearing all the evidence in the case upon motion of the respondent the trial court permitted her to file an amended complaint to conform to proof setting up the additional ground of nondelivery of the deed. The complaint also asked for judgment for the rental value of the property from the date that appellant took possession. The court found for respondent that the purported deed had been obtained by undue influence; that there was not any consideration for the deed; that the deed had not been delivered and found that the rental value of the premises during the period occupied by appellant was $1170 and entered judgment for the cancellation of the deed and for the sum of $1170. The appeal is from this judgment.

[749]Although appellant attacks substantially' every finding of the court and the judgment thereon, these attacks may. be stated as insufficiency of the evidence to support the findings (a) that appellant procured the purported deed through undue influence; (b) that the purported deed had not been delivered; and (c) for the rental value of the premises.

The testimony showed that the alleged grantor, Thomas Murphy, died on the thirty-first day of December, 1928, aged eighty-six; that the date of the deed involved herein was twelve days prior thereto, namely, the eighteenth day of December; that at the date of the deed said Murphy owned two pieces of property which for convenience will be designated as the Orange Street or his home property, located in the town of Compton, and the other the Stock-well Street property, located a few blocks therefrom in the county of Los Angeles, the said Stockwell property being the property described in the deed involved herein; that said Murphy and the defendant had been acquainted for a year or more prior to his death and that they lived next door to each other on Orange Street.

Appellant testified that during the earliest part of her acquaintance with Murphy he was ill; she took food to him and otherwise took care of him; that she went into his home “every day when I came home at noon from the store, I went in there and fed him . . . and in the morning I would wash his face and hands and give him whatever he wanted, and at night when I came home I did the same thing, I fed him . . . ”; that he soon recovered from his temporary illness and their friendship continued. “ ... he used to come in and eat when I came home at noon; he didn’t have breakfast with me at all, but at noon he came in and had lunch with me, and at night when I came home he would come in and have dinner with me, and if he .didn’t come in, I brought it in to him.” This continued “as long as I lived there .- . . Well, no, not every day ... he would come in for quite a while steady, and then all of a sudden ... he wouldn’t come in for awhile . . . and then he would come in again.” During this relationship between them no discussion was had between them about any property except about three months prior to his death and then in connection with some error regarding a cloud on the title