78 P. 953 | Cal. | 1904
Action to annul a deed to certain lands. Plaintiffs had judgment. They appeal from that part of the judgment which denied them their costs of suit.
Respondent's contention is, that "in this class of cases the allowance of costs is a matter of discretion to be exercised by the trial court." (Citing Code Civ. Proc., sec. 1025; Abram v.Stuart,
Appellants claim that the action involved the title or possession to real estate, and that plaintiffs were entitled to their costs as matter of right under section
Plaintiffs and defendants are children of Sarah Gibson, now deceased, who in her lifetime (in April, 1896) conveyed certain real property situated in Los Gatos, California, and certain other real property situated in the city of Omaha, Nebraska, to defendant by two separate deeds of gift. It is alleged in the complaint, and found by the court, that at the time of these conveyances Mrs. Gibson was advanced in years and that her mental and physical powers were somewhat impaired; that she was under the care and control of defendant, who had great influence over her; and that the conveyances of said real property were upon the understanding that its purpose was to prevent any of the children of Mrs. Gibson from procuring a conveyance from her of said lands, and that the defendant should hold the title to said property for the use of her mother, and that she should reconvey to her the title whenever requested so to do, and that defendant would support her mother during her natural life. It also appeared that Mrs. Gibson died testate in April, 1897, and the plaintiffs and defendant were her heirs at law and the devisees of her will, and that her will was admitted to probate April 30, 1897; that prior to her death, and *456 not long after making said conveyances, she demanded of defendant that she reconvey said lands to her, but defendant refused to do so. The title to the property was alleged and found to be in defendant by virtue of said conveyances, but the conclusion of law from the findings was, that "plaintiffs are entitled to judgment to the effect that the said deed of conveyance of the Los Gatos property be annulled and adjudged to be void, but without their costs of suit in this action expended." The conveyance of the Omaha property was not referred to in the judgment.
The foregoing is sufficient to illustrate the character of the action. Section
Plaintiffs moved the court under section
It is advised that the case be remanded, with directions to set aside that part of the judgment relating to costs, to correct the conclusions of law, conforming to the foregoing *457 opinion, and to amend the judgment by awarding costs to plaintiffs, and, as thus amended, the judgment to stand affirmed.
Gray, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the case is remanded, with directions to set aside that part of the judgment relating to costs, to correct the conclusions of law, conforming to the foregoing opinion, and to amend the judgment by awarding costs to plaintiffs, and, as thus amended, the judgment will stand affirmed.
Angellotti, J., Shaw, J., Van Dyke, J.